Delhi High Court
Purshotam Behl vs Union Of India And Ors. on 28 August, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28th August, 2020
+ W.P. (C) 2733/2019, CM Nos.50728/2019 (for vacation of stay) &
6263/2020(for permission to urge additional facts, grounds and
prayers and modification of earlier facts, grounds and prayers)
PURSHOTAM BEHL ..... Petitioner
Through: Mr. Gaurav Mitra, Mr. Dhruv Kapur,
Mr. Vijayender Kumar & Mr.
Maharshi Kaler, Advocates.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ajay Digpaul, CGSC with Mr.
Kamal R. Digpaul, Advocate for UOI.
Mr. Sanjay Poddar, Sr. Advocate with
Mr. Dhruv Nayar, Ms. Padma Priya &
Mr. Shivam Goel, Advocates for R-2
NHAI.
Mr. Yeeshu Jain, Standing Counsel
for CALA.
AND
+ W.P. (C) 2741/2019, CM Nos.50732/2019 (for vacation of stay),
3405/2020 (for taking on record the counter affidavit) &
6264/2020 (for permission to urge additional facts, grounds and
prayers and modification of earlier facts, grounds and prayers)
DALVINDER SINGH SODHI ..... Petitioner
Through: Mr. Gaurav Mitra, Mr. Dhruv Kapur,
Mr. Vijayender Kumar & Mr.
Maharshi Kaler, Advocates.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ajay Digpaul, CGSC with Mr.
Kamal R. Digpaul, Advocate for UOI.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 1 of 58
Mr. Sanjay Poddar, Sr. Advocate with
Mr. Dhruv Nayar, Ms. Padma Priya &
Mr. Shivam Goel, Advocates for R-2
NHAI.
Mr. Yeeshu Jain, Standing Counsel
for CALA.
AND
+ W.P. (C) 2743/2019, CM Nos.50731/2019 (for vacation of stay),
3406/2020 (for taking on record the counter affidavit), 4349/2020
(for impleadment of the applicant as a party to the present
petition) & 6265/2020 (for permission to urge additional facts,
grounds and prayers and modification of earlier facts, grounds
and prayers)
DEVENDER K. SHARMA AND
ASSOCIATES AND ANR. ..... Petitioners
Through: Mr. Gaurav Mitra, Mr. Dhruv Kapur,
Mr. Vijayender Kumar & Mr.
Maharshi Kaler, Advocates.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ajay Digpaul, CGSC with Mr.
Kamal R. Digpaul, Advocate for UOI.
Mr. Sanjay Poddar, Sr. Advocate with
Mr. Dhruv Nayar, Ms. Padma Priya &
Mr. Shivam Goel, Advocates for R-2
NHAI.
Mr. Yeeshu Jain, Standing Counsel
for CALA.
AND
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 2 of 58
+ W.P. (C) 3096/2019, CM Nos.3404/2020 (for vacation of stay) and
3408/2020 (for taking on record the counter affidavit)
FERRARI ESTATES LLP ..... Petitioner
Through: Mr. Sanjay Sarin, Mr. Roopansh
Purohit, Mr. Deepanshu Jain & Mr.
Shaantanu Jain, Advocates.
Versus
UNION OF INDIA & ORS. .... Respondents
Through: Mr. Vikrant N. Goyal, Advocate for R-1.
Mr. Sanjay Poddar, Sr. Advocate with
Mr. Dhruv Nayar, Ms. Padma Priya &
Mr. Shivam Goel, Advocates for R-2
NHAI.
Mr. Yeeshu Jain, Standing Counsel
for CALA.
AND
+ W.P. (C) 3632/2019
ZILE SINGH ..... Petitioner
Through: Mr. Parvinder Kumar, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Sanjay Poddar, Sr. Advocate with
Mr. Sumit Gupta, Ms. Aanchal Seth &
Mr. Anil Kumar Goyal, Advocates for
R-2 NHAI.
Mr. Yeeshu Jain, Standing Counsel
for CALA.
AND
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 3 of 58
+ W.P. (C) 4781/2019 & CM No.50727/2019 (for vacation of stay)
RAJ SINGH RANA @ RAJ SINGH & ORS. ..... Petitioners
Through: Mr. Gaurav Mitra, Mr. Dhruv Kapur,
Mr. Vijayender Kumar & Mr.
Maharshi Kaler, Advocates.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ajay Digpaul, CGSC with Mr.
Kamal R. Digpaul, Advocate for UOI.
Mr. Sanjay Poddar, Sr. Advocate with
Mr. Dhruv Nayar, Ms. Padma Priya &
Mr. Shivam Goel, Advocates for R-2
NHAI.
Mr. Yeeshu Jain, Standing Counsel for
CALA.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. The challenge in all these petitions, by different/some of the owners of
land, total ad-measuring 5.6204 hectares or 13.89 acres, in the revenue estate
of village Malikpur Kohi @ Rangpuri, Notification of intention of
acquisition inter alia whereof, under Section 3A of the National Highway
Act, 1956 (NH Act) was issued on 12th January, 2018, is with respect to the
determination dated 16th January, 2019, under Section 3G of the NH Act, of
the amount payable as compensation for acquisition and calling upon the
petitioners to deliver possession of the land within 60 days, failing which
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 4 of 58
physical possession was threatened to be taken with assistance of police
force.
2. It was the contention of the counsel for the petitioner on 19th March,
2019 when W.P.(C) No.2733/2019 came up before the Court for admission /
consideration, that the determination under Section 3G of the NH Act was
not a final determination, as required to be under the NH Act, inasmuch as
the said determination was for land only and with respect to the
determination of the claim of the petitioner for structures over the said land,
it was stated in the determination dated 16th January, 2019, that another
determination shall be done. It was further the contention of the counsel for
the petitioner that till there is final determination of the claims of the
petitioner, both for land and structure and till the amount so determined is
not deposited, possession of the land, under Section 3E of the NH Act could
not be taken. Finding prima facie merit therein, while issuing notice of the
petition, status quo qua possession of the land and structures thereon was
ordered to be maintained. Subsequently, on other petitions being listed, the
same order followed.
3. Pleadings in the petitions stood completed but the hearing of the
petitions was being deferred on account of prevalent Covid-19 pandemic.
The respondents National Highway Authority of India (NHAI) filed
applications for early virtual hearing of the petitions contending that owing
to the interim order of this Court in these petitions, construction / completion
of the proposed Dwarka Expressway Highway was held up and further
informing that supplementary declaration with respect to compensation for
superstructures also stood published on 4th October, 2019. The said
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 5 of 58
applications for early hearing were allowed and the petitions posted for
hearing on 7th August, 2020.
4. The counsel for the petitioner in W.P.(C) No.3096/2019, the counsel
for the petitioners in W.P.(C) No.2733/2019, 2741/2019, 2743/2019 &
4781/2019, the counsel for the petitioner in W.P.(C) No.3632/2019 and the
senior counsel for the respondents NHAI were heard on 7th August, 2020; the
counsel for the Competent Authority, Land Acquisition of the NHAI
(CALA) supported the arguments of the senior counsel for the NHAI, and
orders/judgments on the petitions were reserved.
5. Though the counsels for the petitioner in W.P.(C) No.3096/2019 and
the petitioner in W.P.(C) No.3632/2019 argued with reference to the facts of
their respective petitions but since the undisputed facts are the same, it is
expedient to hereinafter refer to the pages, annexures and dates from the lead
petition, being W.P.(C) No.2733/2019.
6. As aforesaid, Notification dated 12th January, 2018 under Section 3A
of the NH Act, stating that the land mentioned in the schedule thereto was
required for building, maintenance, management and operation of proposed
Dwarka Expressway on stretch of land from Km.0.000 to Km.1.500 in the
district New Delhi in the State of Delhi and declaring intention to acquire
such land, and inviting objections from persons interested in the said land,
was issued. The petitioners filed their objections before CALA, under
Section 3C of the NH Act. Dealing with the said objections, a detailed report
dated 28th March, 2018 was submitted by CALA to the Central Government.
7. The petitioners in W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019 &
4781/2019, in or about April, 2018 filed writ petitions before this Court
seeking quashing and setting aside of the Notification dated 12th January,
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 6 of 58
2018 under Section 3A of the NH Act. During the pendency of the said
petitions, Notification dated 5th June, 2018 under Section 3D of the NH Act,
declaring that the land specified in the schedule thereto should be acquired
for the purpose mentioned in Section 3A of the NH Act and shall vest
absolutely in the Central Government, free from all encumbrances, was
issued. Vide judgment dated 1st October, 2018, the said writ petitions were
dismissed and the Special Leave Petitions (SLPs) preferred thereagainst were
also dismissed.
8. The petitioners filed their respective claims, seeking compensation in
respect of land, built up structure, loss of business etc. and also contending
that neither any proper demarcation of the land of each of the petitioners had
been done nor certified report from valuation surveyor, of the built up
structures, had been given to the petitioners.
9. Ultimately, on 18th December, 2018, the impugned declaration under
Section 3G of the NH Act was published and whereafter these petitions were
filed and interim orders aforesaid granted.
10. For proper appreciation of the arguments of the counsels, it is apposite
to set out herein below, the relevant provisions of the NH Act:
"3. Definitions.--In this Act, unless the context otherwise requires,--
(a) .....
(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.--(1) 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.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 7 of 58
(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 intended lines 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, it 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) of 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
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 8 of 58
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
periods 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 under section 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
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 9 of 58
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 ten per cent, 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 under section 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;
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 10 of 58
(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 under
section 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 under section 3G by the arbitrator is in
excess of the amount determined by the competent authority, the arbitrator
may award interest at nine per cent, per annum on such excess amount
from the date of taking possession under section 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.
3I. Competent authority to have certain powers of civil court.--
......
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."
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 11 of 58
11. The impugned declaration dated 18th December, 2018 under Section
3G of the NH Act determines the market value of land "as per Sub-Section
(1) of Section 26 read with Sub-Section (3) of Sections 26 and 28 of the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013" (RTFC Act) acquired, at
Rs.8,95,09,632/- at the rate of Rs.64,44,178/- per acre and applying
multiplication factor (for rural area) of 2 "in the light of Sub-Section (2) of
Section 26" of the RTFC Act and after addition of solatium and additional
amount "as per provision of Sub-Section (3) of Section 30" of the RTFC
Act, makes a total award of Rs.36,80,73,416/- and directs that the payment
of compensation awarded shall be paid to the respective land owners /
bhumidhars as per their entitlement given in the revenue records and if any
dispute regarding apportionment of compensation arises, it shall be decided
as per the procedure laid down under the NH Act. The said declaration
under Section 3G of the NH Act, under the head "Other Benefits" inter alia
states as under:
"OTHER BENEFITS:
Besides market value of the land, the land owner is also entitled
to get certain other benefits as per the provisions of NH Act, 1956, vis-à-
vis in the light of guidelines framed and approved by NHAI.
(I) VALUE OF STRUCTURES:
There is specific provision i.e. Section 29 of the
RFCTLARRA, 2013, which deals with the determination of value
of the structures attached to the land and the same is also
incorporated with the market value of the land to determine the
amount of compensation payable to the land owner. This specific
provision i.e. section 29 of the RFCTLARRA, 2013 is also
incorporated and adopted by the NHAI as mentioned in the
guidelines discussed above for the determination of
compensation amount.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 12 of 58
The valuation of structures has been done as per the provisions
of section 29(1) and 29(2) of the RFCTLARRA, 2013 by the
authorized valuer i.e M/s A. Khanna & Associates appointed by
the NHAI in this regard.
The valuation assessed by M/s A. Khanna & Associates is not yet
authenticated by the PWD till the date of passing of this award
and therefore, the value of structures submitted by M/s A.
Khanna is not included in this Award. A separate supplementary
award will be passed in this regard and compensation amount for
structures will be paid separately vide supplementary award."
and also directs that "physical possession of the land will be taken
immediately after the announcement of award as per procedure laid down
under Section 3E of the NH Act".
12. All counsels, during the hearing, though referred to the
declaration/determination under Section 3G of the NH Act as an "award",
taking colour from the Land Acquisition Act, 1894, but informing that the
said word is not used in the NH Act.
13. It was the contention of Mr. Sanjay Sarin, Advocate for the petitioner
in W.P.(C) No.3096/2019, who opened the arguments on behalf of the
petitioners in all the petitions, that (i) under the NH Act there can be no
piecemeal award, as has been done; (ii) this Court in the order dated 19th
March, 2019, while issuing notice of the petition, had prima facie observed
that (a) the award did not specifically answer the question, whether the claim
of the petitioner as mentioned in the award itself, was admissible or not; and,
(b) the award for the compensation payable for structures could not be
deferred, to be announced by way of a supplementary award and till there is
a final determination of the claims of the petitioner, both for land and
structures and till the amount so determined is not deposited, there was no
power to take possession of the land and the structures; (iii) though in some
of these petitions, a supplementary award with respect to the structures has
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 13 of 58
been made on 4th October, 2019 but there is till date no supplementary award
with respect to the structures on the land of the petitioner in W.P.(C)
No.3096/2016; (iv) the definition of land in Section 3(b) of the NH Act
includes superstructures on the land; (v) the Scheme of Section 3A, 3B, 3C,
3D and 3E of the NH Act is, that possession of the land can be taken only
after there has been a determination of compensation payable for land (and
which would include structures constructed thereon, trees etc.) and till the
said compensation is deposited; (vi) possession cannot be taken after making
part award only; (vii) Section 3G of the NH Act also does not provide for
part determination / award; (viii) Section 3G(7) of the NH Act also requires
CALA to take into consideration all the factors prescribed therein, for
determining the amount of compensation; and, (ix) Section 3G(5) provides
that if the compensation determined is not acceptable to the owner of the
land, the amount, on an application of the owner of the land shall be
determined by the arbitrator to be appointed by the Central Government.
14. We enquired from the counsel for the petitioner in W.P.(C)
No.3096/2019, (i) that since Land Acquisition Act existed for acquisition of
land for public purpose and which would include, for construction of
highways, what was the need for the Legislature to, by way of amendment
with effect from 24th January, 1997, incorporate the provisions of acquisition
of land for building, maintenance, management and operation of a national
highway, in the NH Act; (ii) whether not such act of the legislature is
indicative of the provisions of the Land Acquisition Act having proved to be
ineffective for purposes of acquisition of land for national highway which
stand on a different pedestal; (iii) whether not there was a difference in the
Scheme of acquisition under the Land Acquisition Act and under the NH
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 14 of 58
Act; (iv) whether not ultimately it was a question of money only and for
which, the remedy is by way of arbitration under Section 3G(5) of the NH
Act and why should the public work of national highway be stalled; attention
was invited to the amendment of the year 2018 to the Specific Relief Act,
1963, inserting therein Section 20A, prohibiting grant of injunction by a
Court in a suit under the said Act involving a contract relating to
infrastructure project specified in the Schedule and which injunction would
cause impediment or delay in the progress or completion of such
infrastructure project and which includes highways; (v) whether not under
the provisions of the NH Act, taking over of possession could not be
interfered with, even if the land owner was dissatisfied with the
determination of compensation under Section 3G of the NH Act; (vi)
whether not non inclusion of compensation for structures over the land, in
the determination done, was at best an error / fault / lacuna in the
determination and the remedy whereagainst was of arbitration and not to
hold up the delivery of possession; (vii) whether not the challenge if any had
to be made to the vesting of the land in the Central Government and which
had already taken place under Section 3D of the NH Act on issuance of the
declaration thereunder on 5th June 2018 and once there was no challenge to
the vesting of the land in the Central Government, how could taking over of
possession of land be objected to; (viii) whether not power / right vested in
CALA, under Section 3G, to determine compensation, included a right to
determine it wrongly or even if contended to be, wrongly; and, (ix) whether
not once the land stood vested under Section 3D of the NH Act in the Central
Government, free from all encumbrances, the land owners stood divested of
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 15 of 58
their title to the land and for this reason also could not claim to continue in
possession.
15. Mr. Sanjay Sarin, Advocate contended that, (a) only some of the land
owners had filed petitions challenging the Notification under Section 3A of
the Act and the petitioners in the other petitions had not made any challenge;
(b) though no challenge was made to the Notification under Section 3D of
the NH Act but before the pronouncement of the judgment in the petitions
challenging the Notification under Section 3A of the NH Act, the
Notification under Section 3D of the NH Act was published and was taken
note of in the judgment; (c) the present is not a case of CALA determining
the compensation at less than that claimed by the land owners or making any
error in determination, but a case of CALA expressly in the award recording
that the determination / award was not complete and deferring part of the
determination to be published by a supplementary award; (d) once CALA
itself has done so, the direction to deliver possession of the land is bad on the
face of it; (e) it is the settled principle of law that once a particular thing is
prescribed to be done in a particular manner, it has to be done in that manner
only and not in any other manner; (f) thus once Section 3G provides, what all
is to be taken into consideration for determining compensation, any
determination admittedly leaving any of the said factors, is bad on the face
of it and is liable to be set aside; (g) though in the other petitions, the relief
of quashing of the determination under Section 3G of the NH Act has not
been claimed but the petitioner in W.P.(C) No.3096/2019 had expressly
sought quashing of the Notification under Section 3G of the NH Act; (h)
once the Notification under Section 3G of the NH Act is quashed, the
possession of the land, as per the Scheme of the Act, cannot be taken and
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 16 of 58
deposit made of part of compensation is of no avail; (i) had Section 3G
declaration / award not stated that a supplementary award shall be made,
may be the petitioners would not have had any case; (j) it cannot be forgotten
that compulsory acquisition of land is an infringement of right to property,
which though has ceased to be a fundamental right but continues to be a
constitutional right and property cannot be acquired by the State save by due
process of law; (k) the legislature, while incorporating provisions for
acquisition of land for development of Highways in the NH Act, though has
provided for vesting of the land in the Central Government immediately on
dismissal of the objections preferred to the acquisition but under Section 3E
protects the possession of the owner of the land which has so vested in the
Central Government, till the determination and deposit of the compensation
so determined; thus, vesting of the land in the Central Government under
Section 3D cannot be treated as making the possession of erstwhile owner of
the land illegal or unauthorized and the said owner is legally entitled to
restrain the State from taking possession of the land till the entire
determination as provided in the statute has been done and the amount
determined deposited; once CALA itself admits determination to be in part,
based on such part determination and deposit of amount thereunder,
possession cannot be taken; and, (l) to interpret the statute otherwise, would
be a violation of the constitutional right of the petitioners to property.
16. We drew the attention of Mr. Sanjay Sarin, Advocate to Sub-section
(7) of Section 3G of NH Act laying down the factors to be taken into
consideration by CALA while determining the amount of compensation and
enquired, whether not the same requires only the market value of the land to
be assessed and does not provide for valuation of anything else. It was
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 17 of 58
further enquired, whether not the same indicates that the NH Act does not
envisage determination and payment of compensation of superstructures, as
distinct from the Land Acquisition Act, Section 23(1) whereof dealing with
determination of payment of compensation, expressly provides for
determination of compensation of the superstructures also. [However while
penning this judgment we find Section 23(1) also to be not mentioning the
superstructure and being pari materia to Section 3G(7)] It was further
enquired, whether not the definition of 'land' in Land Acquisition Act was
the same as that of land in the NH Act.
17. Mr. Sanjay Sarin, Advocate contended that since 'land' in Section 3(b)
of NH Act has been defined as including things attached to the earth or
permanently fastened to anything attached to the earth and superstructures in
law have been held to be permanently attached to the land, the provisions in
Section 3G(7), of assessment of market value of the land would include
assessment of market value of the superstructures on the land.
18. Mr. Gaurav Mitra, Advocate for the petitioners in W.P.(C)
Nos.2733/2019, 2741/2019, 2743/2019 and 4781/2019, in addition argued,
that (i) though Section 3J of the NH Act provides that nothing in the Land
Acquisition Act shall apply to an acquisition under the NH Act but the Land
Acquisition Act stands repealed and substituted by the RTFC Act; (ii)
Sections 26 to 30 of the RTFC Act deal with determination of market value
of land, determination of amount of compensation, parameters to be
considered in determination of award, determination of value of things
attached to land or building and award of solatium, respectively; (iii) Section
26 of the RTFC Act deals with valuation, only of market value of land and is
equivalent to Section 3G(7)(a)of the NH Act; (iv) Section 27 of the RTFC
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 18 of 58
Act requires calculation of the total amount of compensation, after
determination of the market value of the land; (v) Section 28 of the RTFC
Act lays down the parameters to be considered for determination of amount
of compensation to be awarded and is equivalent to Section 3G(7)(b) to (d)
of the NH Act; (vi) Section 29 of the RTFC Act, as distinct from the NH
Act, expressly provides for determination of value of things attached to land
or building as well as of the trees, plants and standing crops attached to the
land; (vii) Section 30 of the RTFC Act provides for award of solatium and
interest and there is no equivalent thereof also in the NH Act; (viii) however,
Section 105 of the RTFC Act provides as under:
"105. Provisions of this Act not to apply in certain cases or to apply with
certain modifications.-(1) Subject to sub-section (3), the provisions of this
Act shall not apply to the enactments relating to land acquisition specified
in the Fourth Schedule.
(2) Subject to sub-section (2) of section 106, the Central Government may,
by notification, omit or add to any of the enactments specified in the
Fourth Schedule.
(3) The Central Government shall, by notification, within one year from
the date of commencement of this Act, direct that any of the provisions of
this Act relating to the determination of compensation in accordance with
the First Schedule and rehabilitation and resettlement specified in the
Second and Third Schedules, being beneficial to the affected families, shall
apply to the cases of land acquisition under the enactments specified in the
Fourth Schedule or shall apply with such exceptions or modifications that
do not reduce the compensation or dilute the provisions of this Act relating
to compensation or rehabilitation and resettlement as may be specified in
the notification, as the case may be.
(4) A copy of every notification proposed to be issued under
sub-section (3), shall be laid in draft before each House of Parliament,
while it is in session, for a total period of thirty days which may be
comprised in one session or in two or more successive sessions, and if,
before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in disapproving the issue
of the notification or both Houses agree in making any modification in the
notification, the notification shall not be issued or, as the case may be,
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 19 of 58
shall be issued only in such modified form as may be agreed upon by both
the Houses of Parliament.";
(ix) the Central Government has issued a notification under Section
105(3) of the Act, directing that Sections 26 to 30 of the RFTC Act relating
to determination of compensation and rehabilitation and resettlement shall
apply to acquisition of land under NH Act also; (x) it is for this reason only
that the Supreme Court (we find, in Union of India Vs. Tarsem Singh
(2019) 9 SCC 304) has held that with respect to acquisitions under the NH
Act also, solatium and additional amount under Section 30 of the RFTC Act
has to be paid; (xi) the aforesaid provisions of the RTFC Act also
contemplate a single award with respect to all the four elements i.e. market
value of land, value of things attached to land or building, solatium and
additional amount; (xii) though NH Act is mentioned in the Fourth Schedule
of RTFC Act but owing to the Notification dated 1st January, 2005 under
Section 105(3) of NH Act, Sections 26 to 30 thereof are applicable to
acquisition under the NH Act also; (xiii) inspite of having not determined the
entire compensation payable, the respondents have directed the petitioners to
deliver physical possession within 60 days; (xiv) the award is not complete
and is bad; (xv) though there is a supplementary award now with respect to
W.P.(C) Nos.2733/2019, 2743/2019 and 4781/2019 but there is no
supplementary award till now, with respect to the trees, crops and structures
on land subject matter of W.P.(C) No.2741/2019; (xvi) the act of the
respondents of taking over possession, after part award, is contrary to the
scheme of the NH Act; (xvii) this is not a dispute qua quantum of
compensation but of the award, on the face of it, being bad as under the law
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 20 of 58
no piecemeal award is envisaged; and, (xviii) thus the determination under
Section 3G has to be quashed.
19. At this stage, it was enquired from Mr. Gaurav Mitra, Advocate,
whether not there is no prayer in W.P.(C) No.2733/2019, for quashing of the
determination under Section 3G of the NH Act. The prayer paragraph of
W.P.(C) No.2733/2019 is as under:
"(A) Issue a Writ of Mandamus or any other appropriate Writ or
Direction thereby directing Respondent No.3 to demarcate the land
bearing Khasra No.428, Rangpuri, New Delhi 110037 as well as
built-up structures to enable the Petitioner to comply with section
3E of National Highways Act, 1956;
(B) In the alternative to prayer (A), Issue a Writ of Certiorari or any
other appropriate Writ or Direction to produce the demarcation
report already made, if any for land bearing Khasra No.428,
Rangpuri, New Delhi 110037;
(C) Issue a Writ of Mandamus or any other appropriate Writ or
Direction thereby directing the respondents to provide the details
as to which part of land bearing Khasra No.428, Rangpuri, New
Delhi 110037 and built-up structures thereon is to be handed over
by the Petitioner;
(D) Issue a Writ of Mandamus or any other appropriate Writ or
Direction thereby directing the Respondent No.3, to pass a
supplementary award with respect to the built-up structures on
land bearing Khasra No.428, Rangpuri, New Delhi 110037 8;
(E) Issue a Writ of Mandamus or any other appropriate Writ or
Direction thereby directing the Respondent No.3 to pass a
supplementary award with respect to the built-up structures on
land bearing Khasra No. 428, Rangpuri, New Delhi 110037 8 and
till the time the supplementary award is passed or till pendency of
the present Petition, Respondents not to take possession of land
bearing Khasra No. 428, Rangpuri, New Delhi 110037 from the
Petitioner;
(F) Issue a Writ of Mandamus or any other appropriate Writ or
Direction thereby directing the Respondents not to demolish the
built-up structures as standing on land bearing Khasra No. 428,
Rangpuri, New Delhi 110037 till determination of supplementary
award or till pendency of the present Petition;
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 21 of 58
(G) Issue a Writ of Certiorari or any other appropriate Writ or
Direction thereby calling for the records of the present case from
the Respondents before this Hon'ble Court;
(H) Issue a Writ of Mandamus or any other appropriate Writ or
Direction thereby directing the Respondent to provide the
Petitioner with valuation of the built-up structures assessed by M/s
A. Khanna and Associates;
(I) Issue a Writ of Mandamus or any other appropriate Writ or
Direction thereby directing the Respondents to provide the
Petitioner with alternate land/plot in lieu of acquisition of land
bearing Khasra No. 428, Rangpuri, New Delhi 110037;
(J) Cost of the writ petition be allowed to the petitioner;
(K) Pass any other or further orders as this Hon'ble Court may deem
fit and proper in the facts and circumstances of the present case in
favour of the Petitioners and against the Respondent."
20. Mr. Gaurav Mitra, Advocate contended that, notwithstanding there
being no prayer for quashing of the award, this Court, in the order dated 19th
March, 2019 when W.P.(C) No.2733/2019 had come up for admission, has
treated the petition as challenging Section 3G determination. It is also stated
that taking clue therefrom, the petitioner has filed CM No.6263/2020 for
amendment of the petition; though no notice of the said application has been
issued but the respondents, on receiving advance copy thereof have already
filed a reply thereto. It is pointed out that in the amended prayer clause, the
following additional prayers are made:
"(A1) Issue a Writ in the nature of Certiorari or any other Writ, Order or
direction quashing the Award No.02/2018 dated 18.12.2018 passed
by the Respondent No.3 under section 3G being illegal, arbitrary
and contrary to law;
(A2) Issue a Writ in the nature of Certiorari or any other Writ, Order or
direction quashing the Supplementary Award being Award No.2-A
(Supplementary) 2018/NHAI dated 04.10.2019 being illegal,
arbitrary and contrary to law;
(A3) Issue a Writ of Mandamus or any other appropriate Writ or Direction
thereby directing the Respondents not to take possession till the time
an Award is passed in strict compliance of the provisions of Section
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 22 of 58
3 (g) and 3 (h) of National Highway Act, 1956 by the Respondents,
in their letter and spirit;
(A4) Issue a Writ of Mandamus or any other appropriate Writ or Direction
thereby directing the Respondents not to take possession till the time
the provisions of Section 3 (g) and 3 (h) of National Highway Act,
1956 are complied with by the Respondents, in their letter and
spirit."
It is further contended that this is a purely legal question and even
without the amendment, the petitioners are entitled to contend that Section
3G determination is bad and once it is found to be bad, this Court, in
exercise of jurisdiction under Article 226 of the Constitution of India, has no
option but to quash the same.
21. Mr. Gaurav Mitra, Advocate further argued, (a) that Section 3G
determination/award is bad, also because it does not deal with all the claims
made by the petitioners, as also recorded in the impugned 3G determination /
award; (b) that Section 30 of the RTFC Act as under:
"30. Award of solatium.-(1) The Collector having determined the total
compensation to be paid, shall, to arrive at the final award, impose a
"Solatium" amount equivalent to one hundred per cent of the
compensation amount.
Explanation.--For the removal of doubts it is hereby declared that
solatium amount shall be in addition to the compensation payable to any
person whose land has been acquired.
(2) The Collector shall issue individual awards detailing the particulars of
compensation payable and the details of payment of the compensation as
specified in the First Schedule.
(3) In addition to the market value of the land provided under section 26,
the Collector shall, in every case, award an amount calculated at the rate
of twelve per cent per annum on such market value for the period
commencing on and from the date of the publication of the notification of
the Social Impact Assessment study under sub-section (2)of section 4, in
respect of such land, till the date of the award of the Collector or the date
of taking possession of the land, whichever is earlier."
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 23 of 58
and which is applicable to acquisition under the NH Act also, by using the
words "individual awards" in Sub-Section (2) thereof requires separate
awards to be issued with respect to each of the land owners; however, CALA
has made a composite award with respect to the entire land acquired and
separate portions whereof belong to different persons some of whom have
filed these petitions; thus, the impugned award is bad and illegal on this
ground also; (c) that from the impugned award, it cannot be gauged, how
much compensation has been determined qua individual petitioners; (d) that
the petitioner in W.P.(C) No.2733/2019 is the owner of land measuring
0.4284 hectares in Khasra No.428 along with one Mr. Yadav who has not
filed any petition; from the award, it cannot be known what is the
compensation awarded to the petitioner in W.P.(C) No.2733/2019 and what
is the compensation awarded to the said Mr. Yadav; (e) that though the
notification under Section 3A of the NH Act was with respect to entire
0.4285 hectares but the notification under Section 3D is with respect to
0.3624 hectares only in Khasra No.428 and thus does not show, whether the
land out of the share of land of petitioner in W.P.(C) No.2733/2019 or from
the share of land of Mr. Yadav has been acquired (however, on enquiry, it
was stated that the petitioner and Mr. Yadav have 1/2 undivided share each
in the entire 0.4285 hectares); (f) that though Section 3D notification is with
respect to 0.3624 hectares only of land in Khasra No.428 but before this
Court, during the hearing of W.P.(C) No.4521/2018 earlier filed, it was
conveyed that the entire 0.4285 hectares of land was acquired; (g) reference
was made to Competent Authority Vs. Barangore Jute Factory (2005) 13
SCC 477 (paras 7 & 13) to contend that once Section 3G notification is
quashed, vesting of the land in Central Government under Section 3D also
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 24 of 58
has to necessarily go (however, on enquiry, it is reiterated that though
W.P.(C) No.4521/2018 was filed impugning Section 3A notification but
prior to pronouncement of judgment dated 1st October, 2018 therein, Section
3D notification dated 5th June, 2018 had been issued and the judgment deals
with Section 3D notification also); and, (h) that all the steps of acquisition
under Sections 3A to 3H under the NH Act are interlinked; thus, if Section
3G notification is bad, there can be no deposit or taking over of possession
under Section 3H.
22. Having perused the judgment dated 1st October, 2018 in W.P.(C)
No.4521/2018 earlier filed, particularly the paragraphs referred to by the
counsel, we do not find any statement made by the respondents to have been
recorded therein, of acquisition with respect to Khasra No.428 being with
respect to the entire land admeasuring 0.4285 hectares and the observation,
even if any made by the Court on its own, cannot be of any benefit to the
counsel for the petitioner. We also find, this Court to have in the said
judgment, negated the arguments then as well as now urged, with respect to
demarcation and the said judgment having attained finality, it is now not
open to the petitioners to urge the same ground again.
23. Mr. Gaurav Mitra, Advocate further contended that though the
Supreme Court in Competent Authority supra, in paragraphs 16 & 17
thereof, for the sake of public interest, directed additional compensation due
in that case to be deposited but that does not take away the findings in
paragraphs 7 and 13 pointed out earlier, of Section 3G notification, without
being for the entire compensation, being bad. It is further pointed out that in
the said case, the direction as contained in paragraphs 16&17, for deposit of
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 25 of 58
additional compensation was made because possession of the land already
stood taken which is not so in the present cases. In the present case thus,
once it is held that the determination under Section 3G is bad, the
notification dated 18th December, 2018 under Section 3G is liable to be
quashed.
24. We enquired from Mr. Gaurav Mitra, Advocate, whether not even if
the said determination is quashed, CALA would be entitled to again notify
the determination earlier done and now done by way of supplementary
award.
25. Mr. Gaurav Mitra, Advocate contended that the valuation already
done, has been done of as on the date of publication of the notification under
Section 3A and once the notification under Section 3G is found to be
invalid, the entire proceedings commenced by the notification dated 12th
January, 2018 under Section 3A would be liable to be set aside. It is
contended that though the respondents would be entitled to issue a fresh
notification under Section 3A but the valuation then will have to be done on
the basis of the valuation of the Section 3A notification to be issued.
26. We however enquired, whether not owing to the prevalent pandemic
and otherwise, there has been a massive decline in the value of real estate
and whether not the valuation as of this day or of soon hereafter, of land as
well as superstructure would be less than the valuation as done on the date of
Section 3A notification i.e. 12th January, 2018.
27. Mr. Gaurav Mitra, Advocate, though during his arguments agreed that
the prices today would be lower than that on 12th January, 2018 but post
lunch, during his rejoinder argument stated that on enquiry he has learnt that
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 26 of 58
the prices today are more. It was thus contended that the petitioners,
pursuant to the fresh acquisition proceedings if any, would be entitled to
higher compensation.
28. Mr. Gaurav Mitra, Advocate lastly, (i) relied on R.B. Dealers Pvt.
Ltd. Vs. Metro Railway, Kolkata 2019 SCC OnLine SC 871 (paragraph 4)
relating to the acquisition for Metro Rail Corporation, provisions whereof
were stated to be the same as acquisition for National Highways, to contend
that it has been observed therein also that there has to be one composite
award (however on it being pointed out that the said question was not for
adjudication in the said case and a judgment cannot be a precedent on what
was not for adjudication, he did not press more); (ii) relied on J.
Siluvairajan Vs. District Collector, Kanyakumari MANU/TN/1659/2020 in
support his contention that the provisions of RTFC Act apply to NH Act;
and, (iii) reiterated that in W.P.(C) No.2741/2019, there is still no
supplementary award with respect to building/structure on land subject
matter thereof.
29. Mr. Parvinder Kumar, Advocate for the petitioner in W.P.(C)
No.3632/2019, besides supporting the arguments of the other two counsels
contended, (a) that the name of the petitioner Zile Singh does not even find
mention in the award under Section 3G and the Section 3G determination is
bad for this reason also; (b) that the petitioner therein is the owner of land in
Khasra No.422/2; (c) that the land under the said Khasra which was sought
to be acquired vide notification dated 12th January, 2018 under Section 3A,
was mentioned as 0.2710 sq. mtrs.; (d) that in the notification dated 5th June,
2018 under Section 3D also, the area of the land was described as 0.2710 sq.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 27 of 58
mtrs.; (e) however in the determination of compensation notification under
Section 3G, compensation with respect to only 0.2466 sq. mtrs. has been
awarded; and, (f) thus the 3G notification though required to be in terms of
notification under Section 3D, is bad on this account also.
30. The senior counsel for NHAI contended, (i) that supplementary award
with respect to trees, crops, buildings and structures on the entire land
acquired, including the land of the petitioners has been made; (ii) attention
was drawn to the supplementary award Annexure R-1 to the counter
affidavit and it is contended (a) that the Serial No.7 in Table-I at internal
page 3 of the supplementary award pertains to W.P.(C) No.2733/2019; (b)
that Serial Nos.22&23 in Table-I pertain to W.P.(C) No.2741/2019; the
reference to D.S.S. Hotels therein is to Dalvinder Singh Sodhi, petitioner in
W.P.(C) No.2741/2019; (c) that Serial Nos.6&12 in the said Table-I pertain
to W.P.(C) No.2743/2019; mention of Khasra No.489 therein is a
typographical error and the correct Khasra Number to be read is '429'; (d)
that the award at Serial Nos.22 & 23 is with respect to W.P.(C)
No.3096/2019 also as Ferrari Estates LLP has given its land to D.S.S. Hotels
as admitted in this petition as well as the Claim Petition preferred before
CALA filed as Annexure P-6 to the said petition; (e) that the award at Serial
Nos.10,11&16 of Table-I pertain to W.P.(C) No.3632/2019; and, (f) that the
petitioners in W.P.(C) No.4781/2019 have already lifted the compensation
deposited for land as well as the structures; however Serial Nos.8&9 in
Table-I pertain to the said petition; (iii) that Table-II in the supplementary
award relates to the compensation for trees and crops on the land; and, (a)
Serial No.10 therein pertains to W.P.(C) No.2733/2019; (b) there were no
trees with respect to land subject matter of W.P.(C) No.2741/2019 and thus
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 28 of 58
the same does not find mention in Table-II; (c) Serial No.4 in the said table
pertains to land subject matter of W.P.(C) No.2743/2019; (d) the land
subject matter of W.P.(C) No.3096/2019 also did not have any trees and thus
does not find mention; (e) Serial No.9 in Table-II pertains to W.P.(C)
No.3632/2019; and, (f) Serial Nos.2&3 in Table-II pertain to land subject
matter of W.P.(C) No.4781/2019; (iv) that thus determination/award with
respect to all components i.e. land, structures, trees and solatium stands
made and the respondents are entitled to possession; (v) that the petitioners,
in prayer paragraph of the petitions also have only sought mandamus for
publication of the supplementary award, which by then had not been
published but which now stands published; (vi) that this Court protected
possession of the petitioners only because the supplementary award had not
been published and which now stands published; (vii) that the stand of the
petitioners also in the petitions is that the structures on their land should not
be demolished till the supplementary award; (viii) that the entire case of the
petitioners was of the respondents being not entitled to possession till
publication of supplementary award and the petitioners cannot now turn
turtle; (ix) attention is invited to the part of the award recording the claims
preferred by each of the petitioners before CALA and all the said claims
have been dealt with in the award and the supplementary award; (x) the
award with respect to the land contains reasons, why sale deeds relied upon
by the petitioners in proof of prevalent rate of land were not taken into
account as well as for valuation done of land; (xi) that no time limit has been
fixed under the statutory scheme of NH Act for a Section 3G determination
to be made, though time limit of one year from the date of notification under
Section 3A had been fixed for the notification under Section 3D of the Act;
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 29 of 58
(xii) that this is a change from the Land Acquisition Act in which, by
amendment of the year 1984, time period of two years from the date of the
publication of the declaration of intended acquisition under Section 6 was
fixed for making the award; notwithstanding the same, while incorporating
acquisition provisions in the NH Act in the year 1997, no such time limit for
making the award was fixed; (xiii) attention is invited to Section 16 of the
Land Acquisition Act to contend that though thereunder land vests in the
Government and possession thereof can be taken only once an award has
been made but under Section 3D of the NH Act, the land vests in the Central
Government on the date of the notification thereunder, without waiting for
the determination of compensation/award under Section 3G to be made;
(xiv) that the claim of the petitioner in W.P.(C) No.3096/2019 for enhanced
compensation under Section 3G(5) of the NH Act is already subject matter
of arbitration; (xv) that while under the Land Acquisition Act, acquisition
proceedings lapse, if no award is made within two years of the date of the
publication of the declaration of intended acquisition, there is no provision
for lapsing of acquisition under the NH Act; (xvi) reliance is placed on
Mohanji Vs. State of U.P. MANU/SC/2206/1995 (paragraphs 3,4&5) to
contend that it is no longer res integra that even if the entire determination
within the meaning of Section 3G had not been made, it is to be construed as
entire determination; (xvii) that the same view was followed in State of
Punjab Vs. Sharan Pal Singh (1996) 11 SCC 683; (xviii) that Section 105
of the RTFC Act only provides that parameters of Sections 26 to 30 thereof
have to be followed in acquisition under NH Act; (xix) attention was drawn
to page 113 of the counter affidavit, reproducing the Guidelines laid down
with respect to acquisition under the NH Act; (xx) that acquisition under the
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 30 of 58
NH Act is not concerned with payment of compensation; (xxi) reliance is
placed on Amar Nath Vs. Union of India 56 (1994) DLT 356 (paragraphs
23 to 28) to contend that even the general law of acquisition does not
mandate one award only; it is contended that the petitioners also understood
the law so and therefore in the petitions sought the prayer of writ of
mandamus for making the supplementary award; (xxii) that the challenge by
the petitioners to the notification under Section 3A and the notification under
Section 3D already stands dismissed; (xxiii) that out of the land measuring
0.2710 sq. mtrs. in Khasra No.422/2, subject matter of W.P.(C)
No.3632/2019, only land measuring 0.2466 sq. mtrs. belonged to private
land owners and the remaining land already belonged to the Government and
it is for this reason only that in the determination/award under Section 3G,
compensation with respect to 0.2466 sq. mtrs. only has been awarded; and,
(xxiv) that the name of Zile Singh, petitioner in W.P.(C) No.3632/2019 does
not find mention in Section 3G award since the land in the revenue records is
recorded in the name of Dharmbir and others and the petitioner Zile Singh
admits Dharmbir to be his brother; Section 3G award mentions Dharmbir
etc.
31. Ms. Padma Priya, Advocate for NHAI, answering our queries as
herein above recorded, has drawn attention to Section 3F of the NH Act
which permits the Central Government to, after the land has vested in it
under Section 3D, enter upon the land and do all acts necessary for the
purpose of the acquisition i.e. construction of National Highways.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 31 of 58
32. Mr. Yeeshu Jain, Advocate for CALA also has contended that Section
3E uses the word "may" and not "shall"; that the Government can thus
invoke, either of the provisions i.e. Section 3F or Section 3G of NH Act.
33. Mr. Sanjay Sarin, Advocate for the petitioner in W.P.(C)
No.3096/2019 in his rejoinder arguments has contended (i) that the name of
the petitioner therein Ferrari Estates LLP does not find mention in the
supplementary award and thus the supplementary award cannot be said to be
with respect to the superstructures and trees on the land of the petitioner
therein; (ii) that in the notification under Section 3D, name of both D.S.S.
Hotels and Ferrari Estates LLP were contained against Khasra Nos.427, 430
and 431; (iii) that there is no supplementary award with respect to Khasra
No.427; (iv) that in the Claim Petition made by the petitioner (Annexure P-6
to the petition), claims were made with respect to trees also but no
compensation for trees has been awarded with respect to Khasra Nos.430
and 431 also; (v) that writ petition in this case contains a prayer as on the
date of filing thereof, for quashing of Section 3G notification and grounds
'N' and 'O' in W.P.(C) No.3096/2019 pertain thereto; (vi) that the
provisions of the Land Acquisition Act, vide Section 3J of the NH Act do
not apply to the NH Act; and, (vii) that it is the duty of the Government to
not infringe the constitutional rights of its citizens.
34. Mr. Gaurav Mitra, Advocate for the petitioners in W.P.(C)
Nos.2733/2019, 2741/2019, 2743/2019 and 4781/2019 in his rejoinder
argument has contended (a) that Amar Nath supra stands superseded by
Mohanji supra; thus Amar Nath supra cannot be cited as a precedent for
making a piecemeal award; (b) that though Mohanji supra pertains to
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 32 of 58
Section 11 of the Land Acquisition Act and this matter is concerned with
NH Act and RTFC Act but since compensation under the said Acts also is
for land plus structures plus trees plus solatium, there can be no piecemeal
determination and Mohanji supra supports the petitioners; (c) as far as the
reference by Ms. Padma Priya, Advocate to Section 3F is concerned, the
same is to be read harmoniously with the other provisions and so as not to
make Section 3E and the provisions of the RTFC Act otiose; Section 3F is in
the nature of emergent provision; (d) that since there is no limitation for
making determination/award under Section 3G, it is all the more reason that
there should be one determination/award only and not multiple
determinations; (e) that arbitration is contemplated only with respect to
quantum and not with respect to non-inclusion of any of the components of
compensation as prescribed under the NH Act and RTFC Act; (f) that the
petitioner Dalvinder Singh Sodhi in W.P.(C) No.2741/2019 has got nothing
to do with D.S.S. Hotels; (g) that the supplementary award wrongly records
that there was only a boundary wall on the land subject matter of W.P.(C)
No.2741/2019; it is mentioned in the claim petition that there was a full
house; and, (h) that there is no supplementary award with respect to the
house.
35. Mr. Sanjay Poddar, Senior Advocate contended that Section 3G
determination uses the words "boundary wall etc." and thus the
determination done is for whatever is existing on the land. He has also
drawn attention to CM No.3407/2020 in W.P.(C) No.3632/2019 for
correction of the order dated 17th October, 2019 which inter alia failed to
record the presence of Mr. Sumit Gupta and Ms. Anchal Seth, Advocates for
NHAI who were present in that hearing and had made submissions.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 33 of 58
36. The order dated 17th October, 2019 in W.P.(C) No.3632/2019 be read
as also recording the presence of Mr. Sumit Gupta and Ms. Anchal Seth,
Advocates for NHAI. CM No.3407/2020 stands disposed of.
37. We have perused the different provisions, pleadings, annexures and
considered the submissions aforesaid.
38. A perusal of Section 3D and Section 3E of the NH Act shows that
while on a declaration under Section 3D, that the land shall be acquired for
the purposes mentioned in Section 3A of the NH Act, being notified, the
land "shall vest absolutely in the Central Government free from all
encumbrances" but post such vesting, compensation payable for the land is
to be determined by CALA and only on deposit of such compensation by the
Central Government with CALA, is CALA entitled to call upon persons in
possession of the land to deliver possession thereof within 60 days and on
their failure to so deliver possession, to take over possession of the land. As
aforesaid, we have wondered whether not on vesting of the land with the
Central Government, the owner of the land stands divested of his title and
having so stood divested of title, has no right to possession even of the land
and the Central Government in which the land has vested, notwithstanding
Section 3E of the NH Act, is entitled to possession of the land and / or to
carry out the works in relation to highways over the said land. However that
would amount to making Section 3E(1) qua possession, post determination
of compensation and deposit of such compensation, void. We have thus
proceeded to research, how the word 'vested' / 'vests' has been interpreted
by the Courts.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 34 of 58
39. We find the Supreme Court, as far back as in Fruit and Vegetable
Merchants Union Vs. Delhi Improvement Trust AIR 1957 SC 344, while
negating the argument that the word 'vests' necessarily signifies transfer of
title in the person in whom the property is vested, to have held as under:
"25. That the word "vest" is a word of variable import is shown by
provisions of Indian statutes also. For example, Section 56 of the
Provincial Insolvency Act (V of 1920) empowers the Court at the time of
the making of the order of adjudication or thereafter to appoint a receiver
for the property of the insolvent and further provides that "such property
shall thereupon vest in the receiver." The property vests in the receiver for
the purpose of administering the estate of the insolvent for the payment of
his debts after realising his assets. The property of the insolvent vests in the
receiver not for all purposes but only for the purpose of the Insolvency Act
and the receiver has no interest of his own in the property. On the other
hand, Sections 16 and 17 of the Land Acquisition Act (Act I of 1894),
provide that the property so acquired, upon the happening of certain
events, shall "vest absolutely in the government free from all
encumbrances". In the cases contemplated by Sections 16 and 17 the
property acquired becomes the property of Government without any
conditions or limitations either as to title or possessions.
The legislature has made it clear that the vesting of the property is not for
any limited purpose or limited duration.
It would thus appear that the word "vest" has not got a fixed connotation,
meaning in all cases that the property is owned by the person or the
authority in whom it vests. It may vest in title, or it may vest in possession,
or it may vest in a limited sense, as indicated in the context in which it may
have been used in a particular piece of legislation. The provisions of the
Improvement Act, particularly Sections 45 to 49 and 54 and 54A when they
speak of a certain building or street or square or other land vesting in a
municipality or other local body or in a trust, do not necessarily mean that
ownership has passed to any of them."
40. Again, in Municipal Corporation of Greater Bombay Vs. Hindustan
Petroleum Corporation (2001) 8 SCC 143, it was held that the word 'vest'
means vesting in title, vesting in possession or vesting in a limited sense, as
indicated in the context in which it is used in a particular provision of the
Act. In the context of Mumbai Municipal Corporation Act, 1988, it was
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 35 of 58
held that what was vested in the Corporation, necessarily may not be owned
by the Corporation and vesting of government water channel or drain in the
Corporation also have different effects and consequences. It was further
held that the water channel and drains belonging to the government vested in
the Corporation only for the purposes of management. In The National
Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad (2011) 12
SCC 695, in the context of the Textile Undertakings (Taking over of
Management) Act, 1983, it was held that though 'vesting' is ordinarily
understood as meaning having obtained an absolute and indefeasible right
and of transfer or conveyance with possession but in law 'vesting' does not
necessarily and always mean possession but includes vesting of interest as
well; 'vesting' may mean vesting in title, vesting in possession or vesting in
a limited sense; word 'vest' has different shades, taking colour from the
context in which it is used; it does not necessarily mean absolute vesting in
every situation and is capable of bearing the meaning of a limited vesting,
being limited, in title as well as duration; thus, the word 'vest' clothes varied
colours from the context and situation in which the word came to be used in
the statute. Yet again, in V. Chandrasekaran Vs. The Administrative
Officer (2012) 12 SCC 133, in the context of the Land Acquisition Act, it
was held to be settled proposition that once the land vested in the State, free
from all encumbrances, under Section 16 of the said Act, it would not be
divested and proceedings under the Act would not lapse even if an ward is
not made within the statutorily stipulated period - the said land, once
acquired, cannot be restored to the tenure holders / persons interested, even
if it is not used for the purpose for which it was so acquired or for any other
purpose either; the proceedings cannot be withdrawn / abandoned under the
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 36 of 58
provisions of Section 48 of the Act or under Section 21 of the General
Clauses Act, 1897, once the possession of the land has been taken and the
land vests in the State, free from all encumbrances; the land owner then
becomes the persona non-grata with a right to only receive compensation for
the same, unless the acquisition proceeding is itself challenged; the State
neither has the requisite power to re-convey the land to the person interested
nor can such person claim any right of restitution on any ground whatsoever
unless there is some statutory amendment to this effect. Again, in State of
U.P. Vs. Hari Ram (2013) 4 SCC 280, in the context of the Urban Land
(Ceiling and Regulation) Act, 1976, it was held that (i) the legislature is
competent to create a legal fiction, for the purpose of assuming existence of
a fact which does not really exist; (ii) in interpreting the provision creating a
legal fiction, the Court is to ascertain for what purpose the fiction is created
and after ascertaining this, the Court is to assume all those facts and
consequences which are incidental or inevitable corollaries to the giving
effect to the fiction; (iii) thus the words "deemed to have acquired" in
Section 10(3) can only mean acquisition of title or acquisition of interests
because till that time the land may be either in the ownership of the person
who held the vacant land or to possess such land as owner or as a tenant or
as a mortgagee; (iv) the word "absolutely vested" deems only acquisition
and nothing more; (v) 'vests'/'vested', therefor may or may not include
transfer of possession, depending on the context; (vi) 'vesting absolutely'
means deemed to have been acquired; (vii) there must be express words of
utmost clarity to persuade a Court to hold that the legislature intended to
divest possession also; and, (viii) 'vesting' means vacant land is not actually
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 37 of 58
acquired but deemed to have been acquired and acquisition does not take
possession unless there is an indication to the contrary.
41. Applying the aforesaid law, it follows that when Section 3D of the NH
Act provides, 'that on publication of the declaration thereunder that the land
shall be acquired, the land shall vest absolutely in the Central Government
free from all encumbrances', it only signifies acquisition of the title in the
land, leaving only the ministerial task of determination and deposit of
compensation and taking over possession of the land and otherwise does not
vest possession of the land in the Central Government. The erstwhile owner
/ holder of the land, upon such vesting, is not left with any right of
ownership or otherwise or any transferable title in the land, save right to
remain in possession of the land, till determination and deposit of
compensation but which right of possession also is subject to Section 3F of
the NH Act. Applying the aforesaid law it also follows that post Section 3D
declaration, the acquisition of the land is concluded and thereafter
acquisition cannot be challenged or lapse on any ground and only taking
over of possession of land remains. This also follows from Section 3E of the
NH Act which empowers taking over of possession by issuing a 60 days
notice and empowers forcible taking over of possession only on failure of
the persons in occupation / possession to so deliver possession. It thus
follows that notwithstanding the vesting of the land in Central Government
on making of declaration under Section 3D of the NH Act, the possession of
the land remains of whosoever may be in possession thereof and possession
does not stand transferred to the Central Government. This interpretation
also follows from Section 3F of the NH Act which empowers the Central
Government to, notwithstanding possession of the land having not been
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 38 of 58
taken, enter upon the land and do all acts, deeds and things thereon to fulfill
the purpose of acquisition, without any limitation. Though on Section 3F
powers being exercised the de facto possession of the land would be of
Central Government / NHAI / any other person authorized but dejure
possession of the land remain with the erstwhile owner / holder of the land,
till determination and deposit of compensation. Any other interpretation of
Section 3D of the NH Act would make the provisions of Section 3E of the
NH Act for taking over of possession and of Section 3F of the NH Act
empowering the Central Government to notwithstanding not being in
possession carryout the prescribe works over the land, otiose.
42. That brings us to the next question for adjudication i.e. at what stage
of acquisition under the NH Act, does CALA become entitled to take
possession of the land acquired.
43. Once, on an interpretation of Section 3D of the NH Act, it has been
held that vesting of the land in the Central Government does not put CALA
into and does not entitle CALA to seek possession of land, the said question,
on a plain/literal reading/interpretation of the statute, permits of no two
interpretations or of any ambiguity. Neither counsel also has suggested to
the contrary. Under Section 3E of the NH Act, "Where any land has vested
in the Central Government ...... and the amount determined by the
competent authority under Section 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
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 39 of 58
competent authority...... within sixty days of the service of the notice."
Section 3H(1) of the NH Act also provides that "The amount determined
under Section 3G shall be deposited by the Central Government ........with
the competent authority before taking over possession of the land." Thus
under Section 3E(1) read with Section 3H(1), the right to demand possession
of the acquired land which has vested in the Central Government accrues to
CALA only on determination of compensation under Section 3G of the NH
Act and deposit thereof with CALA and which CALA under Section 3H(2)
is mandated to pay to the persons entitled thereto "as soon as may be after
the amount has been deposited".
44. Though neither the senior counsel / counsel for the NHAI nor the
counsel for CALA in their arguments before us have expressly contended
that Central Government, under the aforesaid provisions, becomes entitled to
demand possession, on part determination under Section 3G of the NH Act
and/or on deposit of the amount so determined but the action impugned in
these writ petitions and which has been defended, is such. It thus becomes
necessary to adjudicate the same.
45. We may at this stage notice that though all the counsels for the
petitioners during the hearing conveyed an impression that the demand made
of possession within 60 days is contained in the Section 3G determination /
notification dated 18th December, 2018 and which determination /
notification itself admits that "besides market value of the land......"
determined thereunder "the land owner is also entitled to get certain other
benefits as per the provisions of NH Act, 1956 i.e. value of structures,
solatium and additional amount" and that "a separate supplementary award
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 40 of 58
will be passed in this regard and compensation amount for structures will be
paid separately vide supplementary award", but a close reading of Section
3G determination / declaration dated 18th December, 2018 impugned in these
petitions shows the same to, under the head "Physical Possession of Land"
stating "the physical possession of the land will be taken immediately after
the announcement of award as per procedure laid down under Section 3E of
NH Act, 1956". It will thus be seen that the demand for possession within
60 days is not contained in the impugned notification dated 18th December,
2018 under Section 3G of the Act and the challenge thereto on this ground is
misconceived. Rather it is found that the petitioners, as Annexure P-10 to the
petition, have filed a public notice stated to have been published in the
newspapers on 16th January, 2019, informing of the announcement of the
award dated 18th December, 2018 and deposit of the determined amount and
calling upon the concerned land owners / interested persons entitled to
receive the compensation, to collect the same within 60 days of the said
notice. It is the said public notice which thereafter calls upon all the owners
/ interested persons / any other person who may be in possession of awarded
land, to surrender or deliver physical possession of the land within 60 days
of the notice, failing which physical possession was threatened to the taken
with the assistance of police force. The defect if any, in so demanding
possession, is thus not in Section 3G declaration / determination but in the
public notice and which is non-statutory in nature. Section 3G declaration /
determination merely states that physical possession shall be taken "as per
procedure laid down under Section 3E of the NH Act" and which can only
mean, in accordance with law and no fault can be found therewith.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 41 of 58
46. Section 3E(1) and Section 3H(1) defer possession, only till
determination by CALA under Section 3G and deposit of the amount so
determined under Section 3G. We have thus next examined Section 3G, to
adjudge whether determination thereunder is only of valuation of land and
not of superstructure, solatium and additional amount, for CALA, in the
public notice dated 16th January, 2019 to claim that it is entitled to demand
possession on determination of value of land and deposit thereof by Central
Government with CALA, even if the entitlement in law of the land owners
be also to valuation of superstructures, solatium and additional amount, but
under some other provisions. In this context, we may notice that Section 3G
does not provide for payment of solatium or additional amount and only
provides for determination of the value of land. The liability for payment of
solatium and additional amount for acquisitions under the NH Act is not
under any provision of the NH Act, as held by the Supreme Court also in
Tarsem Singh supra but by virtue of the notification dated 1st January, 2005
under Section 105(3) of the RTFC Act. Thus it cannot be said that
determination of solatium and additional amount and deposit thereof by
Central Government with CALA, is under Section 3G, for CALA to await
the same before demanding possession.
47. That leaves the question, whether determination of valuation of
superstructures, trees and standing crop, is under Section 3G or not. We had
as aforesaid, during the hearing, observed that Section 3G(7), while listing
the factors to be taken into consideration while making the determination
thereunder, does not expressly list the market value of superstructures, trees
or standing crop. Though at the time of hearing it was felt that Section
3G(7) was different from the provisions of the Land Acquisition Act
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 42 of 58
pertaining to compensation but a perusal of Sections 11,15,23 and 24 of the
Land Acquisition Act showed the same also to be not providing expressly
for valuation of superstructures, tree and crops. However both NH Act and
Land Acquisition Act define 'land' as inclusive of things attached to the
earth and permanently fastened to anything attached to the earth and which
words in Chaturbhuj Panda Vs. Collector, Raigarh AIR 1969 SC 255,
Union of India Vs. Ram Mehar (1973) 1 SCC 109, Bai Malimabu Vs. State
of Gujarat (1978) 2 SCC 373, Mrinalini Roy Ratna Prova Mondal Vs.
State of West Bengal (1997) 9 SCC 113, Ambya Kalya Mhatre Vs. The
State of Maharashtra 2011 (10) SCALE 296, have been held to include
superstructures, trees, standing crop etc. It has been held that determination
of compensation under the provisions of Land Acquisition Act has to
necessarily include determination of compensation for structures, trees,
standing crop existing on the land on the date of the acquisition. There is no
reason why, when the legislature, while incorporating the acquisition
provisions in the NH Act, used the same language as in Land Acquisition
Act, for defining 'land', any different interpretation should be given thereto.
It thus has to necessarily follow that determination of compensation for
superstructures, trees, standing crop on the land is under Section 3G of the
NH Act. We may however notice that of Sections 26 to 30 of the RTFC
Act, application whereof has been extended to the NH Act as aforesaid,
Section 29 expressly mandates the Collector to determine the market value
of the building or other immovable property and assets attached to the land
or building which are to be acquired. An interpretation is thus possible that
the determination of valuation of superstructures/buildings, trees, standing
crop on the land, is not under Section 3G but by application of provisions of
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 43 of 58
Sections 26 to 30 of the RTFC Act vide notification dated 1st January, 2005
under Section 105(3) supra and thus it is not mandatory for CALA, to before
demanding possession under Section 3E(1) and 3H(1) of the NH Act,
determine and await deposit by Central Government, compensation for
buildings, superstructures, trees, standing crop on the land acquired.
However we prefer to hold that the determination of valuation of
superstructure, trees, standing crop on the land acquired is under Section 3G,
not only owing to the similarity in language in this respect in the NH Act to
the Land Acquisition Act and the law as has developed under the Land
Acquisition Act but also because, to hold otherwise would amount to the
State compulsorily appropriating valuable property of its citizen without
valuing the same fully and without depositing any compensation therefor,
leaving the citizen in lurch, and which interpretation has to be outrightly
discarded. The same would also be contrary to the scheme of the NH Act,
which though divests the citizen of title to the land even before the same has
been valued and the valuation determined deposited but protects the
possession of the citizen till such valuation and deposit; there is no reason to
differentiate between land and things permanently attached to the land, in
this respect.
48. Thus what follows is that while determination of valuation of land,
building, superstructures, trees, standing crop thereon and deposit thereof
with CALA is under Section 3G(1) and 3H(1) of the NH Act, the
determination of solatium and additional amount is not under Section 3G(1)
and deposit thereof not mandatory before taking over possession.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 44 of 58
49. However solatium and additional amount are nothing but statutory
additions to the valuation arrived at of land and superstructure/trees/standing
crop. In Sunder Vs. Union of India (2001) 7 SCC 211, the Constitution
Bench held that solatium and interest (additional amount) are awarded to
land owners for compulsory acquisition of their lands and grant of
compensation without solatium and interest was / is not necessary to carry
out the object of incorporation of provisions for acquisition in the NH Act in
the year 1997 and would not receive the protective umbrella of Article 31C
and non award thereof would be infraction of Article 14 of the Constitution
of India. Earlier, in Nagpur Improvement Trust Vs. Vithal Rao (1973) 1
SCC 500, it was held that it is immaterial whether acquisition is under one
Act or another, as solatium cannot be denied on account of this fact alone.
In Tarsem Singh supra, it was held that the government, by extending the
application of Sections 26 to 30 of the RTFC Act to the NH Act, has
accepted the principle of Nagpur Improvement Trust supra. Thus, to hold,
that CALA is entitled to take over possession of the land without depositing
solatium and additional amount which are also components of compensation,
would again amount to the Central Government compulsorily acquiring the
property of its citizen without even depositing the admitted lawful
compensation thereof for disbursement to the citizen. We are again not
inclined to accept the said proposition. We repeat, that under the scheme of
the NH Act though the citizen is divested of his land without even
determination and deposit of compensation therefor, as distinct from under
the Land Acquisition Act applicable till 1997 to acquisitions of land for
national highways also, but is not divested of possession of the said land till
such determination and deposit. Once the legislative intent is so and it is
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 45 of 58
found that the land owner, besides the compensation determined under
Section 3G, albeit under a different statute i.e. under the RTFC Act, entitled
to solatium and additional amount also, in our opinion, it will be violation of
the Scheme of the NH Act to allow the possession of the land to be taken
without deposit of solatium and additional amount. It cannot also be
forgotten that save for the provision of deposit before demanding possession,
there is no other time limit for payment of solatium and additional amount. If
it were to be held that the additional amount and solatium is not required to
be deposited before taking over possession, the Central Government shall be
entitled to retain the same with itself, forever, till the citizen who has been
divested of his land as well as deprived of possession thereof, litigates with
the Central Government therefor. Such an interpretation would be violative
of the constitutional right to property and would wrest the State with
unjustified advantage and lead to arbitrary and unfair outcomes and which
interpretation of statutes, as reiterated in Indian Performing Rights Society
Ltd. Vs. Sanjay Dalia (2015) 10 SCC 161, is to be avoided. We thus hold
that the entire compensation for land, building, superstructures, trees,
standing crop, solatium and additional amount has to be deposited before
any demand for possession can be made by CALA under Sections 3E(1) and
3H(1) of the NH Act.
50. CALA, in the present cases, admittedly did not do so. It has thus but
to be held that the demand published in the newspapers on 16th January,
2019, for possession, was illegal and CALA, in pursuance thereto, is not
entitled to possession and was by interim orders of this Court, rightly
restrained from recovering possession.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 46 of 58
51. However that leaves another question to be determined i.e. whether
part determination of compensation in the impugned 3G declaration /
notification dated 18th December, 2018, is bad in law and liable to be set
aside and the consequences thereof.
52. We will first take up the question, whether the law requires all
components of compensation to be contained in one single document. In
this regard, we find a Full Bench of the High Court of Bombay, as far back
as in Prag Narain Vs. The Collector of Agra MANU/MH/0016/1932, faced
with an award for part only of a single block of land, to have held that the
Land Acquisition Act did not appear to contemplate that where more than
one person is interested in a parcel of land, there should be more than one
award relating thereto; however this does not mean that the whole of the
land at any one time to be acquired, must necessarily be dealt with in one
award; it only means that any one piece of land in which more than one
person has an interest for which he can claim compensation, ought not to be
made the subject of more than one award; each award should contain within
its four corners, the fixing of the value of the land with which it deals. We
find a Division Bench of the High Court of Gujarat, thereafter in
Mohamadsarif Hakimji Chippa Vs. State of Gujarat AIR 1967 Guj 269, in
the context of Land Acquisition Act, to have held that the legislative intent is
that in respect of land under acquisition, all matters referred to in Section 11
between all persons interested, must be decided by one award; to construe
them otherwise may lead to anomaly; if the Collector were to have authority
to decide the same matters between the same parties more than once, it may
happen that he may come to one decision in respect of some piece of land
acquired, and another decision subsequently; on all matters concerned under
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 47 of 58
Section 11 between all the parties interested, one award has to be filed and
which assumes finality; however the concept of one award does not
necessarily imply that it should be contained in a single document; the said
decision of the Collector, under given exceptional circumstances, may be
contained in more than one document, so long as one or more documents
constitute one compendious decision of the Land Acquisition Officer or the
Collector; the mere fact that it is contained in more than one document
would not amount to two or more separate awards. This Court, in Lal Singh
Vs. Lt. Governor, Delhi MANU/DE/0221/1971 also held that the language
used in the provisions of the Land Acquisition Act suggests that the land
covered by a notification under Section 6 has to be dealt with as a whole,
without being split up and the compensation amount has to be apportioned in
the award under Section 11 amongst all the persons known or believed to be
interested in the land; there may however be more than one award in
exceptional circumstances, provided the said awards are not inconsistent
decisions regarding the parcel of land, but constitute one decision in respect
of the parcel of land and all matters required to be considered under Section
11 concerning all the persons interested in that parcel of land. Thereafter,
this Court in Amar Nath supra relied upon by the senior counsel for NHAI,
held that no fault could be found with a supplementary award with respect to
some of the matters as the award already stood announced and the
supplementary award submerged itself into the main award, it being only its
part. We also find that a Full Bench of the High Court of Gujarat, headed by
Chief Justice B.N. Kirpal, in Kanchanbhai Jhaverbhai Desai Vs. State of
Gujarat MANU/GJ/0211/1994, dealing with a writ petition with the
grievance that in the award made and pursuant to which possession had been
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 48 of 58
taken, no compensation had been determined with respect to standing crop
and claiming direction for determination and payment of compensation for
standing crop, to have held that in respect of the same parcel of land only
one award is contemplated and no supplementary award is contemplated and
the remedy is by way of seeking a reference under Section 18 of the Land
Acquisition Act.
53. That brings us to Mohanji supra cited by the counsels for the
petitioners as well as the counsels for the respondents. The said judgment
came in the wake of amendment to the Land Acquisition Act which required
an award to be made in all pending cases of land acquisition within a period
of two years from the insertion of Section 11A and it further provided that
all proceedings for acquisition of land in which no award is made within the
specified period, would lapse on expiry of that period. The said period of
two years expired on 23rd September, 1986. Supreme Court in the said
judgment was concerned with an award made on the last date i.e. 23rd
September, 1986 but only in respect of vacant land but not for buildings
constructed over a portion thereof. It was the contention of the petitioners
that since the part award was no award, the acquisition proceedings lapsed.
It was held that it could not be said that no award had been made for the land
acquired, because admittedly award had been made for the entire land
acquired and since no piecemeal award by making a subsequent award after
the expiry of the period of two years was contemplated in law, the award
dated 23rd September, 1986 must be considered as the whole award made
under Section 11, awarding compensation for the entire area of land with no
compensation awarded for the building. It was further held that it was open
to the petitioners to seek reference, if dissatisfied with the award. The said
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 49 of 58
judgment was also followed in Sharan Pal Singh supra. Supreme Court,
thereafter in Harbans Lal Malhotra & Sons Ltd. Vs. Union of India
MANU/SC/1393/2002 was concerned with an award for land only,
recording that with respect to superstructures, there will be a separate
valuation; however without making the said separate valuation, possession
of the land was sought to be taken. The three Judge Bench was constituted
on a doubt being expressed with respect to the correctness of Mohanji and
Sharan Pal Singh supra. However the matter was disposed of, directing
compensation as claimed, for the superstructures, to be paid with interest for
the delay. Mention may lastly be made of a dicta of the Division Bench of
the High Court of Gauhati in Fortuna Agro Plantation Ltd. Vs. The Union
of India MANU/GH/0394/2011. It was held that an award even if made by
ignoring some of the factors which in the light of Section 23(1) of the Land
Acquisition Act are required to be taken into account, is still an award
rendered under Section 11 and the person aggrieved by such an award has
the remedy of applying to the Collector to make a reference in terms of
Section 18.
54. Thus the law with respect to the provisions of the Land Acquisition
Act is, that only one award is envisaged and even if is not with respect to
one of the factors to be taken into consideration, the award made is to be
deemed to be denying any compensation therefor and the only remedy is of
seeking reference under Section 18. One award only has been advocated,
only to avoid inconsistencies in determination of valuation of different
parcels of land vide the same notification. For this reason it has been held
that even where there are more than one award, inconsistencies should be
avoided. There is no absolute bar to more than one award.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 50 of 58
55. We next proceed to adjudge, whether application of Sections 26 to 30
of the RTFC Act to the acquisition proceedings under the NH Act changes
the position in any way. Mr. Gaurav Mitra, Advocate has vehemently
contended that RTFC Act contemplates a single award and not separate
awards.
56. We however find different Sections of the RTFC Act to be dealing
with different components of the compensation, with Sections 26 to 28
dealing with the determination of market value of land, Section 29 with
determination of value of things attached to the land and Section 30 with
solatium and additional amount. The language thereof rather suggests that
separate determinations have to be made under each of the heads.
Thereafter, Section 30 requires the Collector to arrive at the final award.
57. At this stage, the contention of Mr. Gaurav Mitra, Advocate on the
basis of Section 30(2), of the Collector being required to issue individual
awards with respect to each of the claimants, needs to be dealt with.
58. Section 30(2) uses the words 'individual awards' in the context of
different components of the final award and the individual awards referred to
are individual awards for value of land, value of things attached to earth,
solatium and additional amount and not individual claimants. Section 30(2)
provides issuance of individual awards detailing the particulars of
compensation payable and the details of payment of compensation as
specified in first schedule. A perusal of the first schedule to the RTFC Act
shows the same to be listing, (a) market value of land; (b) factor by which
the market value has to be multiplied in the case of rural areas; (c) factor by
which market value has to be multiplied in case of urban areas; (d) value of
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 51 of 58
assets attached to the land; (e) solatium; and, (f) final award. There is no
reference to the claimants therein. It is thus clear that individual awards are
with respect to each of the components of compensation and not with respect
to each of the claimants. Rather the use of the word 'individual awards'
means that there can be separate awards for each of the components of
compensation, though any one or two of the separate individual awards
would not constitute a final award. We may also add that separate awards
for separate claimants is also likely to lead to inconsistencies and for this
reason also it is imperative that valuation of the entire land is arrived at. As
far as apportionment between different claimants is concerned, the same, as
stated by the senior counsel for NHAI and counsel for CALA, is to be as per
the revenue records. CALA is not competent and empowered to adjudicate
disputes as to apportionment and in the event of disputes, under Section
3H(4) is required to refer the same for decision of the Principal Civil Court
of original jurisdiction within the limits of whose jurisdiction the land is
situated.
59. Thus, application of the provisions of the RTFC Act to the NH Act
goes against the contentions of the petitioners that the determination / award
of value of land alone and recording that a supplementary award shall be
made with respect to compensation for structures etc., vitiates the award
with respect to land also, which is liable to be set aside, rather than comes to
the aid of the petitioners.
60. Though as aforesaid, doubt was expressed in Harbans Lal Malhotra
& Sons Ltd. supra with respect to Mohanji and Sharan Pal Singh supra but
as of today, the law remains that even if the award does not contain any
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 52 of 58
component of compensation, it is to be treated as complete award, with nil
award towards the component of compensation not included, and has to be
applied. We may in this context notice, that this is even otherwise a
principle of law. With respect to awards under the Arbitration Act, 1940, it
has been held in Bijendra Nath Srivastava Vs. Mayank Srivastava (1994) 6
SCC 117 and M.K. Shah Engineers & Contractors Vs. State of Madhya
Pradesh (1999) 2 SCC 594 that an arbitration award is not vitiated merely
because the Arbitrator has not given item wise award. It was also held to be
well settled, that an award need not formally express the decision of the
Arbitrator on each matter of difference nor is it necessary for the award to
deal with each and every claim and counterclaim; it has to be presumed that
the award disposes finally, all the matters in difference and the claims or
counterclaims on which no award is made, are deemed to have been rejected.
Supreme Court, recently also in Yashwant Sinha Vs. Central Bureau of
Investigation (2020) 2 SCC 338, while dealing with an application for
review, held that a judgment may be silent in regard to a relief which is
sought by a party and referring to Section 11 of the CPC held that if a decree
is silent as regards any relief, that relief must be treated as declined.
61. Thus the impugned declaration dated 18th December, 2018 under
Section 3G of the NH Act, cannot be said to be bad or illegal or vitiated for
the reason of not valuing and not making any award with respect to the
buildings, superstructures, trees and standing crop, and for stating that a
supplementary award with respect to valuation of superstructures shall be
made. In stating, that a supplementary award shall be made, CALA
indicated that notification dated 18th December, 2018 is not the final award.
Significantly, the said notification dated 18th December, 2018 does not
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 53 of 58
demand possession within 60 days and which could have been demanded
after the final award only, and merely states that possession be delivered as
per the provisions of Section 3E of the NH Act and which could be only
after the final award.
62. The only effect of CALA, in the declaration dated 18th December,
2018 under Section 3G of the NH Act stating so is that the declaration
notified is only qua the value of the land and not the final determination and
thus, pursuant to deposit in terms thereof, possession could not have been
demanded. The counsels for the petitioners, though have contended that the
said determination for the said reason is liable to be quashed and/or declared
bad but have not given any reason or justification therefor. As aforesaid, the
only effect thereof is of making the demand for possession bad and nothing
more.
63. As far as Competent Authority Vs. Barangore supra relied upon by
Mr. Gaurav Mitra, Advocate for the petitioners is concerned, the challenge
therein was to the Notification under Section 3A of the NH Act and it was in
the said context that it was observed that if the said challenge was
successful, vesting of land under Section 3D Notification, being in
pursuance to Section 3A Notification, will also fall. However here, the
challenge to Section 3A Notification has failed and which order has attained
finality. The challenge here is to the Section 3G Notification but which
challenge also has been found to be misconceived as aforesaid and the
possession demanded is not in the Notification under Section 3G but in the
public notice. A wrongful demand for possession, in the non statutory
public notice pursuant to Notification under Section 3G cannot invalidate
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 54 of 58
vesting of land in the Central Government under an earlier Section 3D
Notification invalid.
64. As held in V. Chandrasekaran supra and reiterated in Manshukhbhai
Dhamjibhai Patel Vs. State of Gujarat (2018) 2 SCC 642, it is settled legal
proposition, that once the land has vested in the State, free from all
encumbrances, it cannot be divested and proceedings under the Act (Land
Acquisition Act in that case) would not lapse, even if an award is not made
within the statutorily stipulated period; the said land, once acquired, cannot
be restored to the persons interested, even if it is not used for the purpose for
which it was so acquired or for any other purpose either. It was further held
that vesting "under Sections 16 and 17 of the Land Acquisition Act means
that the property acquired becomes the property of the government, without
any condition or limitation either as to title or possession and that vesting is
not for any limited purpose or limited duration. Thus, in the present cases,
on declaration under Section 3D of the NH Act being made on 5th June,
2018, the land vested in the Central Government; the challenge to the said
vesting earlier made by some of the petitioners, failed; others, neither then
nor now have challenged the said vesting. Applying the law aforesaid, the
acquisition of land stood completed on publication of Section 3G declaration
and the same remains unaffected. Though under the NH Act, as distinct
from the Land Acquisition Act, vesting is not accompanied with delivery of
possession but the same in our view will not change the legal position as
held to be well settled in V. Chandrasekaran supra. In this context, Section
3F of the NH Act becomes relevant. Though under the NH Act
notwithstanding the vesting of land delivery of possession of land is deferred
till determination and deposit of compensation and for which there is no time
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 55 of 58
limit prescribed but Section 3F empowers the Central Government to enter
and do other acts necessary upon the land for the purpose for which the land
has been acquired i.e. of building, maintenance, management or operation of
a National Highway or a part thereof or any other work connected therewith.
Such empowerment makes delivery of possession of acquired land a
formality inasmuch as without even taking possession the land is permitted
to be used for the purpose for which it has been acquired. There is nothing in
Section 3F or otherwise in the Act to indicate that Section 3F is to be
invoked in emergent situations only, as contended by Mr. Gaurav Mitra,
Advocate. Of course if the State is found to be using its powers of
effectively depriving the citizen even of possession of land, without any
intent to within a reasonable time determine and deposit compensation, the
Courts shall intervene.
65. Thus, on CALA, in notification dated 18th December, 2018 under
Section 3G of the NH Act stating that the supplementary award was still to
be made, and pursuant thereto vide public notice dated 16th January, 2019
demanding possession within 60 days, the only entitlement of the petitioners
was to challenge the claim of delivery of possession and the respondents
had/have no right to challenge either the declaration under Section 3G of the
NH Act or the acquisition proceedings. As aforesaid, under the Land
Acquisition Act also, there is no absolute bar to piecemeal award. The only
caution while making a piecemeal award advised is, that it should not lead to
any inconsistencies. It is not the argument of the counsels of any of the
petitioners that the action of CALA of making separate awards for land and
superstructures, trees, etc., results in any inconsistencies. In fact, the award
made on 18th December, 2018 is with respect to valuation of the land which
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 56 of 58
is one of the components and there is no question of any inconsistency
between valuation of the land and valuation of superstructures, buildings,
trees, structures etc.
66. In fact CALA, in the declaration dated 18th December, 2018 under
Section 3G, has given reasons for not making the award with respect to the
superstructures. It is reasoned that though valuation of superstructures as per
Section 29(1) and (2) of the RTFC Act had been got done from a valuer
appointed by NHAI but the said valuation was yet to be authenticated by
Public Works Department and such authentication had not been received till
the date of making of the declaration dated 18th December, 2018 and thus a
supplementary award with respect thereto shall be made. The same, in our
view also falls within the meaning of "extraordinary circumstances" in
which piecemeal award has been held to be permitted to be made. Rather it
shows that neither CALA nor Central Government wanted to withhold the
value determined of land, to await determination of other components of
compensation.
67. All the other disputes which have been urged, are with respect to
computation of the compensation and / or quantum of the compensation and
for which statutory remedy of arbitration is provided and in the face whereof
no challenge in writ jurisdiction can be made.
68. The supplementary award including all the elements / components of
compensation having since been made, now there is no impediment to the
possession being delivered. Even if it is the contention of any of the
petitioner that any component is missing, remedy thereagainst is under
Section 3G(5) of the NH Act.
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 57 of 58
69. We accordingly dispose of all these petitions, directing the
respondents to, within 30 days hereof (since entitlement to possession
accrued on pronouncement of the supplementary award on 4th October, 2019
and more than 60 days wherefrom have already expired and since we have
been told that the work of Dwarka Expressway is held up, putting thousands
of citizens to daily inconvenience in traffic jams) deliver possession of land
in possession / occupation of each of the petitioners, to CALA, failing which
Central Government / CALA shall be entitled to enforce surrender of land in
accordance with law.
70. Needless to state, this judgment shall not affect the right of the
petitioners under Section 3G(5) or under Section 3H(4) (regarding
apportionment of compensation) of the NH Act.
71. The petitions are disposed of.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. AUGUST 28, 2020 'gsr/bs'..
W.P.(C) Nos.2733/2019, 2741/2019, 2743/2019, 3096/2019, 3632/2019&4781/2019 Page 58 of 58