High Court · 2019
Case Details
Court No. - 39 Case :- WRIT - C No. - 34407 of 2022
Legal Reasoning
Petitioner :- Smt. Naseem Fatima Respondent :- National Highway Authority Of India And 2 Others Counsel for Petitioner :- Abhijeet Singh Counsel for Respondent :- Pranjal Mehrotra Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Vipin Chandra Dixit,J. Heard Sri Abhijeet Singh, learned counsel for the petitioner and Sri Pranjal Mehrotra, learned counsel appearing for the National Highway Authority of India(hereinafter called as 'NHAI'). The present writ petition has been filed for the following relief:- "1. To issue a writ order or direction in the nature of mandamus directing the Respondents thereby to award the benefits under Section 23(1A) & 23(2) and Section 28 of the Land Acquisition Act in the light of Hon'ble Supreme Court judgment Union of India versus Tarsem Singh dated 19th September 2019 in Civil Appeal No.7064 of 2019 arising out of SLP(C) No.9599 of 2019 Judgment dated 19.09.2019 and other judgments of Hon'ble High Courts." The submission is that on the basis of the judgment of the Apex Court, this Court has granted relief to some tenure holders whose land have been acquired by the NHAI. The order passed by this Court is appended at page '177' of the paper book. Having noted the submission of the learned counsel for the petitioner, we are required to note the relevant observations of the Hon'ble Apex Court in Civil Appeal No.7064 of 2019 arising out of SLP(C) No.9599 of 2019 in paragraph 41 of the judgment and order dated 19.9.2019 as under:- "41. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, Appeal @ SLP (C) No. 9599/2019 is dismissed." It may further be noted that observation and direction made in paragraph '41' quoted above on an application moved by the NHAI by the order dated 4.8.2021 by the Apex Court. Section 23(1A) of the Act, 1894 has been deleted from the above noted paragraph '41' of the judgment and order dated 19.09.2019. On the clarification application moved on behalf of the petitioners therein. The clarification order dated 04.08.2021 in Misc. Application Diary No.2572 of 2020 in Civil Appeal No.7086 of 2019 (National Highway Authority of India and another Vs. Tehal Singh and others) is relevant to be quoted here under:- "Since the plea is correct, we delete the expression "(1A) and" occurring in Paragraph 41 (Page Signature Not Verified Digitally signed by Jayant Kumar Arora Date 2021.08.02 76 of the paper book) for the reason given above. 16:44:30IST Reason:" It is submitted by Sri Pranjal Mehrotra, learned counsel for NHAI that a clarification application has been moved by the NHAI before the Apex Court which is registered as Diary No.22435 of 2021 and is pending in Civil Appeal No.7064 of 2019 (Union of India Vs. Tarsem Singh) wherein the next date fixed is 09.12.2022. The contention of the learned counsel for the respondents- NHAI is that the petitioner herein is not entitled for solatium and interest as per the Act, 1894 with retrospective effect. Taking note of the above, we may record that on the concession of the learned Solicitor General of India appearing for the Union of India, the Apex Court had not entered into the dispute about the Arbitral award not providing for solatium and interest where no petition under Section 34 of the Arbitration and Conciliation Act, 1996 had been filed by the land owners. The concession given by the Union of India was that solatium and interest be granted even in the acquisition cases that arose between 1997 and 2015. It was, thus, declared by the Hon'ble Court that the provisions of Land acquisition Act, 1894 relating to solatium and interest contained in Section 23(1-A) and (2) payable in terms of Section 28 proviso will apply to acquisitions made under the National Highways Act, between the cases arising between 1997 and 2015. The provision of Section 3(J) of the National Highways Act has been held to be violative of Article 14 of the Constitution of India and declared unconstitutional. At this stage, Sri Pranjal Mehrotra, learned counsel submits that a clarification application has also been made by the Union of India before the Apex Court but the details of the above application is not in the knowledge of the counsel. Be that as it may, as on date, the order passed by the Apex Court dated 19.9.2019 as clarified on 4.8.2021 is operating and is binding on us. We, therefore, provide that the petitioner shall approach the respondent-competent authority for compliance of the judgment and order dated 19.9.2019 as clarified by the Apex Court vide order dated 4.8.2021 and make payment of Solatium and interest payable under Section 23(2) and Section 28 of the Land Acquisition Act, 1894 in the spirit of the decision of the Apex Court, without any unnecessary delay.
Decision
The writ petition is, accordingly, disposed of. Order Date :- 7.12.2022 P.P. Digitally signed by POONAM PATEL Date: 2022.12.09 18:05:51 IST Reason: Location: High Court of Judicature at Allahabad