T.R. Ravi, J.

"Property is a human right because it is a human's right."

Walter Barnes in "Third World Ways in Cambridge USA", The Wall Street Journal, December 1983

1. The writ petitioners in these cases are persons whose land and buildings had been acquired for the purpose of widening the National Highway under the provisions of the National Highways Act. They are aggrieved since part of their properties and buildings are acquired, leaving out small strips of land or buildings that are unusable. In some cases, awards have been passed and in some, awards are yet to be passed. The common question that arises for consideration in all these writ petitions is whether Section 94 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('the 2013 Act' for short) will apply to acquisitions under the National Highways Act.

History

2. The Land Acquisition Act of 1894 ('the 1894 Act' for short) is a pre-constitutional law that provided for the acquisition of land for public purposes and for companies. The Act provides for payment of compensation to persons who lost their lands due to compulsory acquisition. The exercise of the power of eminent domain to expropriate was statutorily recognised by the enactment. Several amendments have been effected to the 1894 Act to bring it in conformity with the requirement of the Constitution of India. The Legislature thought it fit to exclude the operation of the 1894 Act when it came to acquisition for certain specific purposes for which separate law was enacted, with provisions for acquisition. The National Highways Act, 1956 ('the NH Act' for short), which came into force in 1956, did not originally contain provisions for land acquisition. Acquisition for the purpose of National Highways was made under the 1894 Act, and the owners were given in addition to the market value, solatium as well as interest under the provisions of the said Act. By an amendment brought about by the National Highways Laws (Amendment) Act, 1997, provisions were introduced into the NH Act for empowering acquisition for the purpose of development of highways. Section 49 of the 1894 Act recognised a right for the landowners to express their desire that the whole of a house, manufactory, or building may be acquired instead of a part thereof. The 1997 amendment of the NH Act did not contain a similar provision that safeguards the above-said right of the landowner. Instead, what was available was Section 3-G(7), which deals with the determination of the amount of compensation. The only provision which was almost akin to Section 49 of the 1894 Act was Section 3-G(7) (b) and (c), which identified the damage sustained by a reason of severing of the land from other land and the damage sustained at the time of taking possession by the reason of the acquisition injuriously affecting other immovable property of the land owner or his earnings, as matters, that have to be taken into account while determining compensation.

3. The entire concept behind acquisition underwent a sea change when the 2013 Act was brought into force. The 2013 Act, which was enacted 120 years after the earlier enactment, has attempted to replace the expropriation legislation by providing for a humane, participative, informed, and transparent process for land acquisition, as the preamble to the new Act suggests. The preamble says that the intention is to acquire land with the least disturbance to the owners and other affected families, provide just and fair compensation to the affected persons, make adequate provisions for their rehabilitation and resettlement, and ensure that the cumulative outcome of the compulsory acquisition should be that the affected persons become partners in development leading to an improvement in their post-acquisition social and economic status. The 2013 Act recognised the special enactments providing for the acquisition of land for specific purposes, like the NH Act. Section 105 (1) of the 2013 Act says that subject to sub-section (3), the provisions of the Act will not be applied to enactments relating to land acquisition, which are specified in the Fourth Schedule. Sub-section (3) provides for the issuance of a notification within one year from the date of commencement of the 2013 Act, directing that any of the provisions of the 2013 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 enactment specified in the Fourth Schedule, with such exceptions or modifications. There is a rider that the exceptions or modifications shall not reduce the compensation or dilute the provisions of the 2013 Act relating to compensation or rehabilitation and resettlement as may be specified in the notification.

4. Section 94 of the 2013 Act is a provision similar to Section 49 of the 1894 Act that recognises the right of the landowner to express his desire to have the entire building acquired, and it also provides that possession shall not be taken till a decision is taken in this regard. The claim of the petitioners is that the benefit of the above provision is available to the petitioners as well, though there is no such specific provision in the NH Act.

5. Heard Sri P.Sathisan, Sri Shyam Padman, Sri R.Parthasarathy, Sri P.A.Mohammed Shah, Sri V.N.Ramesan Nambisan, Sri K.A.Salil Narayanan, Sri B.G.Bidan Chandran, Sri T.C.Krishna and Smt.N.Sudhadevi (Special Government Pleader), who led the arguments on behalf of the petitioners and respondents.

6. The hearing was completed over several days and spread over a few months. The individual arguments of each counsel are not being narrated in the judgment for the purpose of brevity. Instead, the questions that have been posed by the petitioners and respondents, which call for a decision, are identified and considered. QUESTIONS THAT ARISE FOR CONSIDERATION:-

I. Whether a classification of lands and landowners, based on the enactment under which land is acquired and whether different treatment of landowners whose lands are acquired under the NH Act and the 2013 Act, when it comes to compensation, rehabilitation, and resettlement, are permissible in law

II. Whether the NH Authorities can be compelled to acquire land that is not required for the purpose of the National Highway, having regard to the fact that the acquisition under the NH Act is a linear acquisition, which is a class by itself

III. Whether the principles of salus populi require that larger public interest should outweigh what is beneficial to the landowner

IV. Whether recognition of the right contained in Section 94 of the 2013 Act, through Section 28 of said Act, will amount to a re-introduction of what is barred by Section 105 (1) of the 2013 Act

V. Whether the "just equivalent" compensation is to include the loss caused to the landowner with respect to the market value of the property, the annual profits fetched by the property, the expenditure that would be incurred in constructing or acquiring a similar asset, and the cost of reinstatement and rehabilitation and such other factors

VI. Whether the right under Section 94 of the 2013 Act is to be recognised for arriving at "just equivalent" compensation, having regard to the meaning of the term "compensation," which includes anything given to make things equal in value, anything given as an equivalent, to make amends for loss or damage

VII. Whether the provision contained in Section 94 of the 2013 Act is part of rehabilitation and resettlement rights of the landowner

VIII. Whether Section 94 of the 2013 Act is a substantive provision or merely procedural

7. The Counsel for the petitioners relied on the decisions in;

1. The State of WB vs. Bela Banerjee and Ors. [AIR 1954 SC 170]

2. P.Vajravelu Mudaliar v. Special Deputy Collector for Land Acquisition West Madras [AIR 1965 SC 1017]

3. RC Cooper & Ors. Vs. UOI [1970 (1) SCC 248]

4. Nagpur Improvement Trust & Anr. Vs. Vithal Rao & Ors. [AIR 1973 SC 689]

5. State of Mysore and Ors. vs. K. C Adiga and Ors. [AIR 1976 SC 853]

6. Bishambhar Dayal Chandra Mohan & Ors. vs. State of UP. [AIR 1982 SC 33]

7. Basantibai Fakirchand Khetan and Ors. Vs. State of Maharashtra and Ors.[ AIR 1984 (Bom) 366]

8. State of Maharashtra & Anr. Vs. Basantibai Mohanlal Khetan and Ors. [ AIR 1986 SC 1466]

9. Jilubhai Nanbhai Khachar and Ors. vs. State of Gujarth [1995 Supp(1) SCC 596]

10. Whirlpool Corp. V. Registrar of Trade Marks [AIR 1999 SC 22]

11. UOI V. Naveen Jindal &Ors [AIR 2004 SC 1559]

12. State of Haryana Vs. Ranbir  AIR 2006 SC 1796]

13. M. Naga Venkata Lakshmi vs Visakhapatnam Municipal Corp. & Anr. [2007 (8) SCC 748]

14. Popcorn Entertainment & Ors V. City Industrial Development Cor. And Ors. [(2007) 9 SCC 593]

15. M/S. Entertainment Network (India) Ltd vs. M/S. Super Cassette Industries Ltd. [2008 (13) SCC 30]

16. The Project Director, NHAI Vs. M. Hakeem and Ors. [AIR 2021 SC 3471]

17. NHAI Vs. P Nagaraju and Ors. [(2022) 15 SCC 1]

18. National Highway Authority of India v. R.Raju [2022 (1) KLT 154]

19. Ibrahimkutty K.K vs. UOI and Ors. [WP(C)7544/2022]

20. Kunhiraman K vs. UOI and ors.[WP(C) 5609/2022]

21. Project Director NHAI & Ors. Vs. Dharmaratnam & Ors. (RP No. 581 of 2019 in W.P.(C) No.39160 of 2018)

22. Saramma Itticheriya v. State of Kerala & Ors. [AIR 2008 Kerala 72 (FB)]

23. State of Maharashtra & Ors. v. Reliance Industries Ltd. & Ors. [(2017) 10 SCC 713]

24. Lalita & Ors. v. Union of India & Ors. [ 2003 KHC 3675]

25. Union of India & Anr. v. Tarsem Singh & Ors. [2019 (9) SCC 304]

26. Caritas India v. Union of India [(2019) 5 MLJ 641]

27. Transstroy (India) Ltd. v. State of Telangana [MANU/AP/0023/2016]

28. Noushad KM v Union of India (WPC 14570 of 2021)

29. K.Chellapandian v. Government of India & Ors. [MANU/TN/0442/2019]

30. Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. [(2013) 1 SCC 353]

31. Vidya Devi v. State of Himachal Pradesh & Ors. [ 2020 KHC 6015]

32. Golden Iron and Steel Forging v. Union of India & Ors. [2011 (4) RCR (Civil) 375]

33. Balammal and Ors. V. State of Madras and ors. [AIR 1968 SC 1425].

34. Ghaziabad Development Authority v. Balbir Singh [AIR 2004 SC 2141]

35. K.T.Plantation Pvt.Ltd & Anr. v. State of Karnataka [(2011) 9 SCC 1]

8. The counsel for the respondents relied on the following decisions;

a. Harsook Das Bal Kishan Das v First Land Acquisition Collector (1975) 2 SCC 256

b. State of Bihar v. Kundan Singh [AIR 1964 SC 350]

c. Project Director, Project Implementation Unit v. P.V. Krishnamoorthy [(2021) 3 SCC 572]

d. Girnar Traders v. State of Maharashtra & Ors. [2011(3)SCC 1]

e. Prithipal Singh & Ors. v. State of Punjab & Anr. [(2012) 1 SCC 10]

f. Hira Tikkoo v. Union Territory of Chandigarh & Ors. [(2004) 6 SCC 765]

g. National Highways Authority of India v. Sayedabad Tea Company Limited & Ors. [(2020) 15 SCC 161]

h. Mohammed v. Project Director [1993 (1) KLT 730]

9. STATUTORY PROVISIONS WHICH NEED CONSIDERATION:

9.1 Land Acquisition Act, 1894:

Section 49: Acquisition of part of house or building. -

(1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired:

Provided also that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined.

In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken, is reasonably require for the full and unimpaired use of the house, manufactory or building.

(2) If, in the case of any claim under section 23, sub-section (1) thirdly by a person interested, on account of the severing of the land to be acquired from his other land, the [appropriate Government] is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part.

(3) In the case last hereinbefore provided for, no fresh declaration or other proceedings under sections 6 to 10, both inclusive, shall be necessary; but the Collector shall without delay furnish a copy of the order of the appropriate Government to the person interested, and shall thereafter proceed to make his award under section 11.

9.2 The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

9.2.1. Preamble -An Act to ensure, in consultation with institutions of local self-government and Gram Sabhas established under the Constitution, a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto.

9.2.2. Section 3(p). Definition.-In this Act, unless the context otherwise requires,-

(p)-"land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth;

9.2.3. Section 28. Parameters to be considered by Collector in determination of award. In determining the amount of compensation to be awarded for land acquired under this Act, the Collector shall take into consideration-

firstly, the market value as determined under section 26 and the award amount in accordance with the First and Second Schedules;

secondly, the damage sustained by the person interested, by reason of the taking of any standing crops and trees which may be on the land at the time of the Collector's taking possession thereof;

thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;

fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;

fifthly, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change;

sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 19 and the time of the Collector's taking possession of the land; and

seventhly, any other ground which may be in the interest of equity, justice and beneficial to the affected families.

9.2.4. Section 31. Rehabilitation and Resettlement Award for affected families by Collector.

(1) The Collector shall pass Rehabilitation and Resettlement Awards for each affected family in terms of the entitlements provided in the Second Schedule.

(2) The Rehabilitation and Resettlement Award shall include all of the following, namely:-

(a) rehabilitation and resettlement amount payable to the family;

(b) bank account number of the person to which the rehabilitation and resettlement award amount is to be transferred;

(c) particulars of house site and house to be allotted, in case of displaced families;

(d) particulars of land allotted to the displaced families;

(e) particulars of one time subsistence allowance and transportation allowance in case of displaced families;

(f) particulars of payment for cattle shed and petty shops;

(g) particulars of one-time amount to artisans and small traders;

(h) details of mandatory employment to be provided to the members of the affected families;

(i) particulars of any fishing rights that may be involved;

(j) particulars of annuity and other entitlements to be provided;

(k) particulars of special provisions for the Scheduled Castes and the Scheduled Tribes to be provided:

PROVIDED that in case any of the matters specified under clauses (a) to (k) are not applicable to any affected family the same shall be indicated as not applicable:

PROVIDED FURTHER that the appropriate Government may, by notification increase the rate of rehabilitation and resettlement amount payable to the affected families, taking into account the rise in the price index.

9.2.5. Section 38. Power to take possession of land to be acquired.

(1) The Collector shall take possession of land after ensuring that full payment of compensation as well as rehabilitation and resettlement entitlements are paid or tendered to the entitled persons within a period of three months for the compensation and a period of six months for the monetary part of rehabilitation and resettlement entitlements listed in the Second Schedule commencing from the date of the award made under section 30: PROVIDED that the components of the Rehabilitation and Resettlement Package in the Second and Third Schedules that relate to infrastructural entitlements shall be provided within a period of eighteen months from the date of the award:

PROVIDED FURTHER that in case of acquisition of land for irrigation or hydel project, being a public purpose, the rehabilitation and resettlement shall be completed six months prior to submergence of the lands acquired.

(2) The Collector shall be responsible for ensuring that the rehabilitation and resettlement process is completed in all its aspects before displacing the affected families.

9.2.6. Section 94. Acquisition of part of house or building.

(1) The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desires that the whole of such house, manufactory or building shall be so acquired:

PROVIDED that, if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house, manufactory or building within the meaning of this section, the Collector shall refer the determination of such question to the Authority concerned and shall not be taken possession of such land until after the question has been determined.

(2) In deciding on such a reference made under the proviso to sub-section (1), the Authority concerned shall have regard to the question whether the land proposed to be taken, is reasonably required for the full and unimpaired use of the house, manufactory or building.

(3) If, in the case of any claim under this Act, by a person interested, on account of the severing of the land to be acquired from his other land, the appropriate Government is of opinion that the claim is unreasonable or excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part.

(4) In the case of any acquisition of land so required no fresh declaration or other proceedings under sections 11 to 19, (both inclusive) shall be necessary; but the Collector shall without delay furnish a copy of the order of the appropriate Government to the person interested, and shall thereafter proceed to make his award under section 23.

9.2.7. Section 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, shall be issued only in such modified form as may be agreed upon by both the Houses of Parliament.

9.3. National Highways Act, 1956

9.3.1. Section 3(b): 3. Definitions.-In this Act, unless the context otherwise requires,-

(b) "land" includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth

9.3.2. Section 3E(1): Power to take possession.

(1) Where any land has vested in the Central Government under sub-section (2) of section 3-D, and the amount determined by the competent authority under section 3-G with respect to such land has been deposited under sub- section (1) of section 3-H, 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.

9.3.3. Section 3-G: 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 3-C, 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 3- A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

9.3.4. Section 3-H(1): Deposit and payment of amount.- (1) The amount determined under section 3-G 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.

9.3.5. Section 3-J: Land Acquisition Act 1 of 1894 not to apply.-Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act.

CONSIDERATION:

Question No.I:

10. In Bela Banerjee (supra), a Constitution Bench of the Hon'ble Supreme Court considered the correctness of the judgment of the High Court of Calcutta, declaring certain provisions of the West Bengal Land Development and Planning Act, 1948, unconstitutional and void. The controversy centered around the constitutionality of a condition whereby compensation payable was limited so as not to exceed the market value of the land on 31.12.1946. Article 31(2) of the Constitution of India as it stood then provided that no property shall be acquired under any law authorising such acquisition unless the law provides for compensation for the property and either fixes the amount of compensation or specifies the principles on which the compensation is to be determined. Rejecting the contention that compensation under Entry 42 of List III of the Constitution of India could not be full cash equivalent, the Constitution Bench held that what is determined as payable must be compensation, that is, a just equivalent of what the owner has been deprived of. The Court further held that within the limited requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. It was also held that whether such principles take into account all the elements which make up the true value of the property appropriated and exclude matters which are to be neglected is a justiciable issue. The judgment was rendered on 11.12.1953. Article 31(2) was later amended in 1955 by the Constitution 4th Amendment Act.

11. In RC Cooper (supra), an Eleven Judge Bench of the Hon'ble Supreme Court considered the validity of the Banking Companies (Acquisition and Transfer of Undertaking) Act. The Hon'ble Supreme Court noted that the dictionary meaning of the word "compensation" meant anything given to make things equal in value, anything given as an equivalent, to make amends for loss or damage. In all States where the rule of law prevails, the right to compensation is guaranteed by the Constitution or regarded as inextricably involved in the right to property. The Hon'ble Supreme Court further held that the Court was unable to hold that a principle specified by the Parliament for determining compensation of the property to be acquired is conclusive. The Court was of the opinion that if such a view is accepted, the Parliament will be invested with a charter of arbitrariness, and by abuse of the legislative process, the constitutional guarantee of the right to compensation may be severely impaired. The Court laid down the important methods for the determination of compensation as follows;

"94. The important methods of determination of compensation are-(i) market value determined from sales of comparable properties, proximate in time to the date of acquisition, similarly situate, and possessing the same or similar advantages and subject to the same or similar disadvantages. Market value is the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase; (ii) capitalization of the net annual profit out of the property at a rate equal in normal cases to the return from gilt-edged securities. Ordinarily value of the property may be determined by capitalizing the net annual value obtainable in the market at the date of the notice of acquisition; (iii) where the property is a house, expenditure likely to be incurred for constructing a similar house, and reduced by the depreciation for the number of years since it was constructed; (iv) principle of reinstatement, where it is satisfactorily established that reinstatement in some other place is bona fide intended, there being no general market for the property for the purpose for which it is devoted (the purpose being a public purpose) and would have continued to be devoted, but for compulsory acquisition. Here compensation will be assessed on the basis of reasonable cost of reinstatement; (v) when the property has outgrown its utility and it is reasonably incapable of economic use, it may be valued as land plus the break-up value of the structure. But the fact that the acquirer does not intend to use the property for which it is used at the time of acquisition and desires to demolish it or use it for other purpose is irrelevant; and (vi) the property to be acquired has ordinarily to be valued as a unit. Normally an aggregate of the value of different components will not be the value of the unit."

It was, however, observed that the above are not the only methods.

12. In Vajravelu Mudaliar (supra), a Constitution Bench of the Hon'ble Supreme Court considered the constitutionality of the Land Acquisition (Madras Amendment) Act, 1961. The Court held that even after the amendment of Article 31(2), the expression 'compensation' continued to mean "just equivalent." The amending Act sought to differentiate between persons with regard to payment of the compensation. The Hon'ble Supreme Court held that discretion is writ large on the Amending Act, and it cannot be sustained on the principle of reasonable classification. That was a case where the object of the Amending Act was to acquire lands for housing schemes at a lesser cost. It empowered the State to acquire lands for housing schemes at a price lower than what the State has to pay if the same was acquired under the Principal Act.

13. Later, a Seven Judge Bench of the Hon'ble Supreme Court in Nagpur Improvement Trust (supra) considered the constitutionality of certain provisions of the Nagpur Improvement Trust Act, 1936. The Hon'ble Supreme Court followed the judgment in Vajravelu (supra) and the judgment in Balammal (supra) and held that classification is bad and impermissible. The Court held that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an advocate. It is further stated that the object being to compulsorily acquire for a public purpose, object is equally achieved whether the land belongs to one type or another type. The Court further held that it is immaterial whether the acquisition is under the Land Acquisition Act or under another enactment and that if the existence of two enactments would enable the State to give one owner different treatment from another equally situated, the owner who is discriminated against can claim the protection under Article 14. The Court held that while it is well settled that a classification, in order to be reasonable, must be founded on intelligible differentia and a rational relation with the object sought to be achieved by the legislation in question, the object itself cannot be discriminatory. The Court went on to consider what can be a reasonable classification for the purpose of determining compensation, if the object of the legislation is to compulsorily acquire land for public purposes.

14. In K.T. Plantation (P) Ltd. (supra), a 5-judge bench of the Hon'ble Supreme Court held that public purpose is a pre- condition for deprivation of a person from his property under Article 300A and the right to claim compensation is also inbuilt in that article and when a person is deprived of his property the State has to justify both the grounds, which may depend on scheme of the Statute, legislative policy, object and purpose of the legislature and other related factors. It was also held that a Statute depriving a person of his property is, therefore, amenable to judicial review on grounds hereinbefore discussed. In the cases on hand, we are not concerned with the validity of the NH Act or the 2013 Act. However, the above decision has a bearing on the case on hand, insofar as it lays down that the right to claim compensation is built into Article 300A of the Constitution of India.

15. In Lalita (supra), a learned Single Judge of the Karnataka High Court held that Section 3-J insofar as it says that the provisions of the 1894 Act will not apply for acquisitions under the NH Act is unconstitutional and violative of Article 14. A Division Bench of the Punjab and Haryana High Court in Golden Iron (supra) considered the validity of the amendment of the NH Act in 1997, whereby provisions empowering acquisition were included. The Court considered the question whether different compensation can be paid in cases of acquisition under the NH Act. The Court held that the expeditious construction of Highways, the expeditious conclusion of acquisition proceedings, the reference of disputes regarding compensation to an arbitrator, the statutory power to associate private entrepreneurs, and the legal ability to access private capital, have no relevance to the assessment/payment of compensation and that the expeditious acquisition of land can be validly achieved by resorting to the urgency provisions contained in Section 17A of the Land Acquisition Act. The Court held that the impugned enactment merely replaces the procedure for acquisition, envisaged by the Land Acquisition Act with a new procedure, stated to be expeditious, more efficient, and in tune with the need for expeditious construction of national highways, but does not disclose a distinct or peculiar public purpose as would justify the denial of solatium and other statutory benefits relating to compensation. The above judgment of the Punjab and Haryana High Court was declared to be correctly held by the Hon'ble Supreme Court in paragraph 29 of the judgment in Tarsem Singh (supra), which is extracted for reference.

"29. Both, P.Vajravelu Mudaliar [P.Vajravelu Mudaliar v. LAO,(AIR 1965 SC 1017)] and Nagpur Improvement Trust [Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500] clinch the issue in favour of the respondents, as has been correctly held by the Punjab and Haryana High Court in Golden Iron and Steel Forging [Golden Iron and Steel Forging v. Union of India, (2011) 4 RCR (Civil) 375]. First and foremost, it is important to note that, as has been seen hereinabove, the object of the 1997 Amendment was to speed up the process of acquiring lands for National Highways. This object has been achieved in the manner set out hereinabove. It will be noticed that the awarding of solatium and interest has nothing to do with achieving this object, as it is nobody's case that land acquisition for the purpose of National Highways slows down as a result of award of solatium and interest. Thus, a classification made between different sets of landowners whose lands happen to be acquired for the purpose of National Highways and landowners whose lands are acquired for other public purposes has no rational relation to the object sought to be achieved by the Amendment Act i.e. speedy acquisition of lands for the purpose of National Highways. On this ground alone, the Amendment Act falls foul of Article 14."

16. The Hon'ble Supreme Court in Tarsem Singh (supra) was considering a batch of appeals filed by the Union of India challenging the view of the Punjab and Haryana High Court that non-grant of solatium and interest to lands acquired under the National Highways Act is bad in law and consequently Section 3-J of the National Highways Act, 1956 is struck down as violative of Article 14 to that extent. In paragraph 29 of the judgment which has been extracted above, after referring to Vajravelu (supra) and Nagpur Improvement (supra), the Court held that the object of the 1997 Act was to speed up the process of acquiring lands for National Highways and the awarding of solatium and interest has nothing to do with achieving the said object. The Court found that the classification made between different sets of landowners whose lands happened to be acquired for the purpose of National Highways and land owners whose lands have been acquired for other purposes have no rational relation to the object sought to be achieved by the Amendment Act, that is, speedy acquisition of lands for the purpose of National Highways.

17. Even after Tarsem Singh (supra), contentions were raised as to the applicability of Section 3-J of the NH Act, with regard to aspects other than solatium and interest. The issues were set at rest to a great extent by the judgment of the Hon'ble Supreme Court in P. Nagaraju (supra). Paragraphs 27 to 29 of the judgment are extracted for reference.

"27. In that view of the matter, though Section 3-G(7)(a) of the NH Act provides the parameters to be taken into consideration, it only provides the basic parameters to be taken note of, for determining the amount payable as compensation. While applying the said parameters for determination of compensation, since the RFCTLARR Act, 2013 is also applicable as the NH Act is contained in the Fourth Schedule, the factors as provided under Sections 26 and 28 of the RFCTLARR Act, 2013 including the seventh factor will also be applicable in appropriate cases for the determination of the market value as fair compensation for the acquired land.

28. When land is acquired from a citizen, Articles 300-A and 31-A of the Constitution will have to be borne in mind since the deprivation of property should be with authority of law, after being duly compensated. Such law should provide for adequately compensating the land loser keeping in view the market value. Though each enactment may have a different procedure prescribed for the process of acquisition depending on the urgency, the method of determining the compensation cannot be different as the market value of the land and the hardship faced due to deprivation of the property would be the same irrespective of the Act under which it is acquired or the purpose for which it is acquired. In that light, if Section 28 of the RFCTLARR Act, 2013 is held not applicable in view of Section 3-J of the NH Act, the same will be violative of Article 14 of the Constitution. In that circumstance, the observation in Tarsem Singh [Union of India v. Tarsem Singh, : (2019) 9 SCC 304 : (2019) 4 SCC (Civ) 364] that Section 3-J of the NH Act is unconstitutional to that extent though declared so while on the aspect of solatium and interest, it is held so on all aspects relating to determination of compensation.

29. In any event, the extracted portion of the Notification dated 28-8-2015 is explicit that the benefits available to the landowners under the RFCTLARR Act is to be also available to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule, among which NH Act is one. Hence all aspects contained in Sections 26 to 28 of the RFCTLARR Act for determination of compensation will be applicable notwithstanding Sections 3-J and 3-G(7)(a) of the NH Act."

18. P.Nagaraju (supra) also considered the decision in M.Hakeem (supra), which was relied on by the counsel for the respondents, to submit that the Court should not interfere with awards passed and orders of the arbitrator under the NH Act unless a patent illegality which goes to the root of the matter is pointed out. The Apex Court held that the permissibility of interference is on specific grounds of (i) the arbitrator not adopting a judicial approach, (ii) a breach of principles of natural justice, (iii) a contravention of Statute not linked to public policy or public interest, as being patent illegality under Section 34(2A) and (iv) most basic notions of justice.

19. In Dharmarathnam (supra), this Court held that while enacting the 2013 Act, the Parliament intended to retain the special enactments and give such benefits wherever it is advantageous to the landowners for acquisition under the special enactments. It was held that the substantive provisions regarding the determination of compensation and rehabilitation and resettlement referred to in the First Schedule, Second Schedule and Third Schedule of the 2013 Act will apply to acquisition under the National Highways Act in view of Section 105. This Court held that Section 105 only makes the substantive provisions applicable and not the procedural provisions. It is thus well settled that as far as compensation is concerned, there cannot be any discrimination on the basis of the enactment under which the acquisition is made and that in acquisitions under the NH Act, all aspects relating to compensation, rehabilitation and resettlement contained in Sections 26 to 28 of the 2013 Act will be applicable.

Question Nos.V to VIII :-

20. The above four questions are interlinked and hence considered together. The questions also call for a discussion of the nature of right to property and the protection that is afforded by the Constitution of India to such proprietary rights of an individual. What exactly compensation in the present scenario is.

21. The meaning of "just equivalent of what is deprived of" cannot be held to mean the mere money equivalent of the stretch of land. To know what a person is deprived of on account of the acquisition of his property, it is necessary to know what exactly property and the ownership of the property is. According to the ancient English doctrine, the Crown alone can be the owner of the land. The highest right that a subject can have, was thus not ownership but only a mere encumbrance upon the ownership of the Crown. The above concept is no longer recognised, and, in the present day, one can be the owner of property, and the right of the Crown is only a contingent right to succession in case there is no person to inherit the property (escheat or bona vacantia). Salmond on Jurisprudence, 12th Edn., discusses the different incidents of 'ownership' from pages 246 to 264. 'Ownership', according to Salmond, denotes the relation between a person and an object forming the subject matter of his ownership. The author has identified the incidents of ownership as (i) a right to possess the thing which one owns, though he may not necessarily have possession, (ii) the right to use and enjoy the thing owned; the right to manage it i.e., the right to decide how it shall be used; and the right to the income from it, (iii) the right to consume, destroy or alienate the thing, (iv) the characteristic of being indeterminate in duration; the position of an owner differs from that of a non-owner in possession in that the latter's interest is subject to be determined at some future time and (v) residual right, ie., the rights that remain after giving away lesser rights like lease, easement, right to take profits etc. (emphasis supplied). The above views of the author have been quoted with approval by the Hon'ble Supreme Court in several of its judgments.

22. In Entertainment Network (India) Ltd. (supra), the Hon'ble Supreme Court held that the owner of copyright indisputably has a right akin to the right to property and that it is also a human right. The Apex Court observed that human rights have started gaining a multifaceted approach and that property rights vis-a-vis individuals are also incorporated within the "multiversity" of human rights. The right to property has been stated to be a constitutional right as well as a human right by the Hon'ble Supreme Court in N.Padmamma & Ors. v. S.Ramakrishna Reddy & Ors. [2008 (15) SCC 517]. The above judgment has been referred to with approval in Vidya Devi (supra) wherein the Hon'ble Supreme Court held that an 80 year old illiterate woman, who did not challenge the deprivation of her land in any proceedings from 1967-68 when possession was taken without recourse to any law, till 2010, was found entitled to compensation.

23. In Tukaram Kana Joshi (supra), the Hon'ble Supreme Court held that the right to property is now considered to be not only a constitutional or a statutory right but also a human right and that though, it is not a basic feature of the Constitution or a fundamental right, human rights are considered to be in the realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment, etc. The Court further held that human rights are gaining an even greater multifaceted dimension and that the right to property is considered very much to be a part of such new dimension. [Vide Lachhman Dass v. Jagat Ram [ (2007) 10 SCC 448], Amarjit Singh v. State of Punjab [(2010) 10 SCC 43], State of M.P. v. Narmada Bachao Andolan [(2011) 7 SCC 639], State of Haryana v. Mukesh Kumar [ (2011) 10 SCC 404] and Delhi Airtech Services (P) Ltd. v. State of U.P. [ (2011) 9 SCC 354].

24. Under Section 3(i) of the 2013 Act, 'cost of acquisition' is defined to include the cost of Rehabilitation and Resettlement and the cost of acquisition of land and building for the settlement of displaced or adversely affected families. It also includes demurrage to be paid for damages caused to the land and standing crops in the process of acquisition. Section 28 of the 2013 Act deals with the matters which have to be considered while determining the amount of compensation. Section 3-G(7) of the NH Act has to be read along with Section 28 of the 2013 Act in view of the categoric pronouncement of the Hon'ble Supreme Court in P.Nagaraju (supra). Section 28 takes in seven aspects for consideration as against the four items specified in Section 3-G (7) of the NH Act. The additional aspects which have been included are the damage sustained by the person interested by reason of the taking of any standing crops and trees which may be on the land, the damage resulting from the diminution of the profits of the land between the time of publication of the declaration under Section 19 and the time of taking possession and any other ground which may be in the interest of equity, justice and beneficial to the affected families. Section 28 of the 2013 Act is almost similarly worded as Section 23 of the 1894 Act.

25. There is no dispute that in view of the notification issued under Section 105 (3) of the 2013 Act, the provisions of the 2013 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 parties, shall apply to the cases of land acquisition under the NH Act, with such exceptions or modifications that do not reduce the compensation or dilute the provisions of the 2013 Act relating to compensation or rehabilitation and resettlement. The provisions contained in Sections 27 and 28 of the 2013 Act are applicable to acquisitions under the NH Act. Under the new regime (2013 Act), the word "compensation" does not mean the market value of land alone but also includes several other factors like rehabilitation and resettlement. In view of the sea change that has been brought about in the law relating to compulsory acquisition, it has necessarily to be held that a compensation would include not only the money equivalent of the property that is acquired, but also the cost of rehabilitation and resettlement. The above conclusion is also strengthened by the fact that the 2013 Act postulates passing of two awards passed, one for fixing the compensation for the property that was acquired and the other for the purpose of resettlement and rehabilitation.

Section 49 of the 1894 Act and Section 94 of the 2013 Act:

26. The question then is whether Section 94 is also a factor which relates to compensation payable on compulsory acquisition, rehabilitation and resettlement. The 2013 Act repealed the earlier Land Acquisition Act, 1894. The 1894 Act came into force much before the National Highways Act of 1956. Section 49 of the 1894 Act is almost similar to the provisions contained in Section 94 of the 2013 Act. Both Section 49 of the 1894 Act and Section 94 of the 2013 Act are to a certain extent prohibitive in nature, that is, they begin by saying that the provisions of the Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory, or other buildings, etc.

27. The provisions give much importance to the desire of the owner as to what is to be done with a portion of the property which may remain after the acquisition of a part. If the owner of the land desires that the entire building is to be acquired, the Collector must refer the determination of the question to either the Court or the Government and there is an embargo to take possession till the question is determined. The provisions are clearly beneficial to the landowner who is given an option in a situation where a portion of the property which is left out from acquisition may go waste.

28. The right which is dealt with in Section 49 of the 1894 Act and Section 94 of the 2013 Act, is the same as right of the owner of a property to decide how he should use it and his right to consume, destroy or alienate the property, spoken to by Salmond in his thesis on Jurisprudence. The above said right of the owner is also acquired/taken over, when he is deprived of his property. The right recognised in Section 94 is hence a right which is a necessary incident of the "ownership" of property. The above right is constitutional right as well as a human right as held by the Apex Court in the judgments referred to earlier.

Section 49 and its Scope:

29. The scope of Section 49 of the 1894 Act had come up for consideration before the Hon'ble Supreme Court in Kundan Singh (supra), wherein the Hon'ble Supreme Court held that objections under Section 49 of the 1894 Act, to the acquisition of a part of the building has to be considered and dealt with before an award is made under the Act. Later, in Harsook Das (supra), the Apex Court held that even if there is vacant land, Section 49(2) of the Act will be attracted by reason of definition of land and that acceding to the contention on behalf of the appellant that Section 49(2) speaks only of acquisition of land along with a building and not to the case of acquisition of vacant land is to rob the meaning of land under Section 49(2) of the Act and the content of Section 49(2) of the Act. The question came up for consideration before a Full Bench of this Court in Saramma Itticheriya (supra). The Full Bench posed the following three questions for consideration.

"1. Is Collector vested with power to reject the claim under Section 49(1) put forward by the owner to acquire entire building and proceed with acquisition of part of the building without Court interventions

2. Whether tenant can file a writ petition challenging the action taken by the Collector when the option under Section 49(1) is exercised by the landlord

3. When the Collector accepted the option to acquire the entire building, whether only building materials are to be acquired or the entire building including the land where it is situated also need be acquired"

30. Relying on Kundan Singh (supra), the Full Bench held that Section 49 prescribes a definite prohibition against putting in force any of the provisions of the Act for the purpose of acquiring a part only of any house, if the owner desires that the whole of such house shall be acquired, that where a part of the house is proposed to be acquired and a notification is issued in that behalf, the owner must make up his mind as to whether he wants to allow the acquisition of a part of his house or not, that he should indicate his desire to the Land Acquisition Officer before an award is made under Section 11, in which case, all further proceedings under the relevant provisions of the Act must stop, and that if the objection is not taken at the relevant time, it would still be open to him to claim adequate compensation in the light of the material provisions of Section 23 of the 1894 Act. (emphasis supplied). The Full Bench referred to the decision in Harsook Das (supra), which accepted the decision in Kundan Singh (supra) and explained the difference between Sections 49(1) and (2) and held that the object of Section 49(1) is to give the owner the option whether he would like part of the building to be acquired. The Apex Court had also held that Section 49(2) of the Act gives the option to the Government only where the claim under the third clause of Section 23(1) of the Act, which is for severance, is excessive and that the Government in such a case of acquisition of the remaining portion of the land under Section 49(2) of the Act saves the public exchequer money which otherwise will be the subject-matter of a claim for severance. The Full Bench further held that when the Collector accepts the option to acquire the entire building, not only the building materials are to be acquired, but the entire building, including the land where the building is situated, needs to be acquired. The Full Bench specifically held that the words 'whole of such house or manufactory or building' includes land in which it is situated. The decisions in Harsook Das (supra) and Saramma Itticheriya (supra) came up for consideration before the Hon'ble Supreme Court in Reliance Industries (supra), wherein the Court held that there can be no dispute regarding the propositions laid down in the above decisions. It was however held that in cases where the owner of the building is not the owner of the land, the land need not be acquired and the entire interest of the owner of the building can be acquired. The Court was considering a case where the land belonged to the Government and the Port Trust. Since Section 94 of the 2013 Act and Section 49 of the 1894 Act, are more or less worded similarly, the principles of law contained in the above decisions will apply while considering the scope of Section 94 of the 2013 Act also.

Right conferred by Section 94 - an analysis:

31. Section 94 starts with a prohibition to acquire a part only of a house, manufactory, or other building if the owner desires that the entire building should be acquired. The said option to the owner is not dependent on whether the owner will be able to put to use the part that is not proposed to be acquired. If a question arises as to whether any land proposed to be acquired does or does not form part of a house, etc., the issue has to be referred for determination by such Authority concerned, and possession is not to be taken till the question is determined. While deciding the above aspect, the Authority shall have regard to the question whether the land proposed to be taken, is reasonably required for the full and unimpaired use of the house, manufactory, or building. One wonders whether the land forms part of a house or a house forms part of the land. I would think that a house, manufactory, or building can be attached to a land, but to say that the land is attached to a house, manufactory, or building may not be appropriate. One need not spend time on the way the provision is drafted since Section 3(p) of the Act defines 'land' to include benefits that arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. So, whether what is left out is a building or land after a portion is acquired, Section 94 gives an option to the landowner to require that the entire property be acquired. In Mohammed (supra), a Division Bench of this Court held that the owner will be a person interested, but all persons interested need not be owners, as contemplated under Section 49 of the 1894 Act. The Court considered the question whether the right to demand the acquisition of the entire extent under Section 49(1) is available to a person other than the owner and held that the right is available only to the owner. The same is the position under Section 94 of the 2013 Act.

32. Section 94(3) says that if the claim made by the person interested, on account of the severing of the land to be acquired from his other land, is, in the opinion of the appropriate Government, unreasonable or excessive, the Government can order acquisition of the whole of the land before the Collector has made the award. It can thus be seen that the claim on account of severance has been linked to the right to demand acquisition of the whole building/land. The claim for damage on account of severance is provided for in Section 28(3) of the 2013 Act. It is already settled that Section 28(3) will apply to acquisition under the NH Act also. Thus Section 28 is intrinsically linked to Section 94 of the 2013 Act. The above view is strengthened by the judgment of the Hon'ble Supreme Court in Kundan Singh (supra), wherein the Hon'ble Supreme Court held that if the objection is not taken at the relevant time, it would still be open to him to claim adequate compensation in the light of the material provisions of Section 23 of the 1894 Act, which is almost similar to Section 28 of the 2013 Act. It can, hence, necessarily be concluded that even if the option under Section 94 is not exercised in time, it is open to the claimant to make a claim regarding severance under Section 28 of the 2013 Act.

33. To elaborate, the ingredients that have to be considered under Section 28 of the 2013 Act while fixing the compensation include the loss that the owner suffers because of the severance of the land from other properties belonging to at the time of taking possession of the land, as well as the damage sustained by reason of the acquisition injuriously affecting his property, movable or immovable, in any other manner, or his earnings. It also includes the reasonable expenses incidental to a change of residence or place of business, which a person interested may be compelled to do as a consequence of the acquisition. There is also an omnibus provision that says that while fixing compensation, the Collector has to take into consideration any other ground that may be in the interest of equity, justice and beneficial to the affected families. The 3rd, 4th and 7th aspects included in Section 28, are wide enough to include the rights available under Section 94 of the Act. It cannot be disputed that the option given to a landowner to desire that his entire land may be taken is a right incidental to ownership of property, and his right to get compensation for losing such a right, cannot be taken away as it is in the interest of equity, justice and beneficial to the affected family. The person who loses the land knows what is most beneficial to him. Going by Section 105, what is more beneficial to a person who loses the land cannot be denied, and the payment for such benefit is necessarily an endorsement of a right that is substantive in nature and not procedural. One cannot say such payments are not "compensation" since these payments will also help the person who is losing the land to rehabilitate and resettle himself.

34. How a landowner suffers because of part acquisition is something that can be visualised. If a small extent of land with a portion of the building remains after acquisition, there is no possibility for the owner to repair the construction and make it habitable since the Panchayat and Municipal Laws will not permit the grant of any such permission for reconstruction, particularly since the property is abutting the National Highway. Even if a construction is to be made, it can only be done after providing for the necessary setback, which again means the area that is lost as a setback has become unusable because of the acquisition. Even if carrying out repairs and reconstruction is permitted, it would necessarily mean expending a lot out of the compensation which has been received for the property which has been notified and acquired. The end result is that a person is left with a small extent of land with a broken structure, where he has no choice, but to demolish the existing structure and retain the land as land without making any construction. The land only falls waste, and it is no solace to say that the land is abutting the National Highway since, as far as the person who loses it is concerned, it is worthless. Such losses can be compensated only if there is a compulsion to acquire such lands. Such compulsion also forms part of the resettlement and rehabilitation. Even the 1894 Act was mindful of such situations when it gave an option to the landowner to express his desire to the acquisition of the entire area. Such loss is damage that is suffered because of the acquisition of a part of the holding and resulting from the severance of the acquired portion from the un-acquired portion. It would be preposterous to state that a right that was available in a Statute that was enacted in 1894 is no longer available, despite the fact that there has been a sea change in the concept of eminent domain and compensation, with the coming into force of the 2013 Act.

35. In P. Nagaraju (supra), the Court was concerned with the applicability of Sections 27 and 28 of the 2013 Act, and it was held that the provisions would apply to acquisitions under the NH Act. The reasoning in all the judgments that held the right of the landowner is that the purpose of the amendment to the NH Act, including provisions for acquisition, is the speedy acquisition of land and that the said object has no relation to the denial of adequate compensation. Viewed from that perspective, it can be said that the prohibition in Section 94, not to put into effect the provisions of the Act for the purpose of acquiring part only of a building, will affect the object of the enactment and hence cannot be made applicable to the NH Act. At the same time, the substantive right available to the landowner to demand that the entire property should be acquired cannot be taken away. The right of the landowner as declared by the Hon'ble Supreme Court in Tarsem Singh (supra), Nagaraju (supra), and Kundan Singh (supra) and the right under Section 94 need to be balanced; without in any way affecting the right of the landowner and the purpose of the NH Act.

36. In the cases on hand, the possession of the portion of property notified has been taken, and what remains is the balance portion left out. The work of the National Highway expansion is also underway. As such, no purpose will be served by holding that possession shall not be taken till a decision is taken regarding the question of whether the portion of land left out forms part of the building acquired, as required under Section 94(1) of the 2013 Act. The above view is also justified in the light of the judgments in Kundan Singh (supra), Harsook Das (supra) and Saramma Itticheriya (supra), since the desire to have the entire property acquired had not been expressed immediately after the notification. It is hence declared that Section 28 of the 2013 Act takes in the right of the owner, from whom a part of a building is acquired, to have his entire land acquired, as contemplated in Section 94, but the prohibition in Section 94 not to put the provisions of the Act to use, for acquiring part only of a building will not apply to acquisitions under the NH Act.

37. In this connection, it would be worthwhile to note that under the Green National Highways Corridor Project, the Government of India drew a resettlement policy framework, a copy of which was made available for the Court's reference. In the Entitlement Matrix shown in Table 4 in the Policy document, it is stated that compensation for all land acquired under the NH Act for the project shall be calculated and payable in accordance with Sections 26 to 30 and Schedule I of the 2013 Act. It is also stated that if only part of any plot is affected and the owner desires the whole plot to be acquired (under Section 94 and Note C), the competent authority can award compensation for the remaining part of the plot or award 25% of the actual value of the land as additional compensation, allowing the owner to retain the remaining land, if agreeable. It is seen that the Central Government was very much aware of the loss that would be caused by acquisition only of a part, in an acquisition under the NH Act.

Question Nos.II to IV:

38. The above questions are interconnected and are being considered together. In view of the conclusion regarding the extent to which Section 94 of the 2013 Act is included in Section 28 of the 2013 Act, the question whether there is a re-introduction of what is barred under Section 105 by including Section 94 within the fold of Section 28 does not arise. The right recognised under Section 94 is the very same right that is already recognised in Section 28 of the Act, and the above finding is very much in accordance with the dictum laid down in Kundan Singh (supra), wherein the Hon'ble Supreme Court has held that even if the objection regarding part acquisition is not taken before the award is passed, the right under Section 23 of the 1894 Act is available.

39. The argument that was advanced by the respondents to justify the absence of a provision similar to Section 94 of the 2013 Act is that the acquisition under the NH Act is a linear acquisition, which is a class by itself. It is hence submitted that all the provisions of the Land Acquisition Act cannot be applied to such linear acquisitions. It is argued that what is beneficial to the landowner need not always be the criteria in the case of acquisition under the NH Act and the principles of salus populi would govern such situations. It is stated that the larger public interest has to be looked into, and there cannot be a compulsion on the National Highway Authority to acquire lands that are not required for the purpose of the National Highway merely because the landowner expresses such a desire under Section 94. The respondents submit that the NH Act is a code in itself, and reference to the 2013 Act can only be for the purpose of determining the compensation and nothing more. It is submitted that what is provided under Section 94 is acquisition and not payment of compensation. It is hence submitted that there cannot be a compulsion to acquire land which is not required and a direction to pay compensation for such acquisitions. It is further submitted that Sections 26 to 30 of the 2013 Act would apply for the purpose of grant of compensation alone. It is further submitted that Section 105 (1) of the 2013 Act is similar in terms of Section 3J of the NH Act, and what is barred by Section 105 (1) cannot be introduced by including Section 94 through Section 28 of the 2013 Act. The counsel referred to Section 10 of the 2013 Act and submitted that even in the case of agricultural land, linear acquisitions are left open.

40. As regards the question whether the State can be compelled to acquire which is not required, in view of the decisions of the Hon'ble Supreme Court in Kundan Singh (supra) and Harsook Das (supra) and that of the Full Bench of this Court in Saramma Itticheriya (supra), the right under Section 23 of the 1894 Act is available. The above said right permits the landowner to compensation for damages for severance of the acquired portion and the unacquired portion. There is, hence, no real compulsion on the State to acquire. However, there is a compulsion to compensate for the loss/damage caused. It is for the Government to make an appropriate decision whether the portion should also be acquired since the liability to compensate cannot be denied. A reading of Sections 94 (3) and (4) would strengthen the above conclusion. The contention that Section 105 (1) of the 2013 Act and Section 3-J of the NH Act are similar in terms can be self-defeating since it has already been held that Section 3-J is unconstitutional. I do not propose to go into that controversy since it is not required for the purpose of deciding these cases. Prithipal Singh (supra) and Hira Tikkoo (supra) relied on to submit that the doctrine of the welfare of an individual should yield to that of the community (Salus populi est suprema lex: regard for the public welfare is the highest law) does not also apply to the fact situation. Prithipal (supra) was rendered in the context of the right of an accused as against the duty of the police. Hira Tikkoo (supra) was rendered in a case that was concerned with the allotment of plots under development schemes. Neither of the cases consider the rights of persons whose lands are compulsorily acquired under the provisions of a Statute and their respective rights under the said law. In the case on hand, the court is concerned with the rights of a person who is deprived of property, which are safeguarded under the statute itself.

41. The Counsel for the respondents relied on Girnar Traders (supra), to submit that the NH Act is a complete code in itself and the application of the provisions of the 2013 Act is limited to the extent provided in the notification issued under Section 105 of the 2013 Act, for determining compensation payable. It is hence submitted that all the provisions of the 2013 Act will not be applicable to the acquisitions under the NH Act. In the above decision, the Hon'ble Supreme Court has considered the effect of legislation by reference in extenso. The question involved was whether all the provisions of the 1894 Act would apply to acquisition under the Maharashtra Regional and Town Planning Act. The question involved in the case on hand is whether Section 94 of the 2013 Act, has been taken in by the notification issued under Section 105 of the 2013 Act. Even if the NH Act is to be treated as a complete code in itself, with provisions for the acquisition of land and excluding the application of the 1894 Act, the fact remains that by Section 105 of the 2013 Act, the legislature has thought it fit to make some provisions of the 2013 Act applicable for acquisition under the NH Act. The decision in Girnar Traders (supra) will not in any manner affect the consideration of the question as to which of the provisions of the 2013 Act have been made applicable. Moreover, the Hon'ble Supreme Court has held that the "self-contained code" argument based on the above judgment cannot be used as a discriminatory tool to deny benefits available to landowners merely because the acquisition is under a different enactment. [See Nagpur Improvement Trust (supra) and Tarsem Singh (supra)]. In Sayedabad (supra) also, the Hon'ble Supreme Court had held that the NH Act was a special enactment and a complete code in itself, while considering the question of whether the claimant can approach the Court under Section 11(6) of the Arbitration and Conciliation Act, in the absence of the Central Government appointing an arbitrator as contemplated in the NH Act. The Court held that Section 11(6) cannot be invoked, and the remedy was to either file a writ petition or a civil suit.

42. I shall now consider some other incidental contentions raised and arguments advanced, and the decisions that were cited during the arguments. Reliance placed on Ghaziabad Development Authority (supra), is not quite relevant to the point in issue, since it does not relate to compensation payable on compulsory acquisition of land. The decision in K.C.Adiga (supra) relates to the validity of certain executive orders restricting the right of kumkidars and the Court held that the orders are violative of Articles 19 and 31. The judgment is not of much relevance to the issue on hand. So also, the decisions in Bishambhar Dayal (supra) and Basantibai (supra), are also not very relevant for deciding the case on hand. In Basantibai (supra), the fixing of compensation in urban and rural areas differently was found to be justified and the Court also found that it was a case prior to the introduction of Article 300A. In Jilubhai Nanbhai (supra), the Hon'ble Supreme Court held that Article 300A was only a constitutional right and not a basic feature of the Constitution. The Court held that the compensation granted for the acquisition of mines, etc., was not illusory. The judgment in P.V.Krishnamoorthy (supra) relied on by the respondents also does not deal with the issue in question and only speaks about the power of the Central Government to acquire for development of highways and the effect of the declaration as highways. The decision does not deal with the applicability of the provisions of the 2013 Act to acquisitions under the NH Act. Naga Venkata Lakshmi (supra) only reiterates the law that the right to property cannot be deprived without paying compensation.

43. In Caritas (supra), a Division Bench of the Madras High Court considered the constitutionality of an amendment brought in by the State Government whereby three State enactments were sought to be exempted from the provisions of the 2013 Act. The said enactments got the assent of the President on 27.9.2014. The Court held that the three enactments cannot be said to have come into force, and all acquisitions made under the three enactments made on or after 27.9.2013 were held illegal. The above judgment was challenged before the Hon'ble Supreme Court. While so, the Government enacted a revival and revalidation Act, to save the repugnancy of the above three enactments. The new enactment was also challenged before the Supreme Court. The Hon'ble Supreme Court in the judgment in G.Mohan Rao v. State of Tamil Nadu [ (2022) 1) SCC 696], held that the 2019 Validation Enactment was a legitimate legislative exercise coming within the four corners of Article 254 of the Constitution.

44. In Jindal (supra), while considering the question regarding respect to the National Flag, the Hon'ble Supreme Court held that the Constitution is a living organ and ongoing interpretation is permissible. Reliance was placed by the respondents on the decision of a Division Bench of this Court in R.Raju (supra) to submit that once possession of the entire building is taken and compensation paid, the landowner cannot, as of right, claim to retain the portion of the building which is notified. The above case was one in which the compensation for the entire building was paid, and the entire building was sought to be demolished. The judgment is not an authority for a proposition that Section 94 of the 2013 Act cannot be applied in the case of acquisition under the NH Act.

45. Incidentally, it is also contended by the respondents that the writ petitions cannot be entertained since the petitioners have alternate remedies and they have not pursued the remedies available under the statute. Popcorn Entertainment (supra) and Whirlpool Corporation (supra) have laid down the parameters for exercising the power of judicial review under Article 226 of the Constitution. There can be no dispute regarding the maintainability of these writ petitions since the prayer regarding the applicability of Section 94 of the 2013 Act to the acquisitions under the NH Act, is not a matter that can be decided by the authorities contemplated under the NH Act. Moreover, if the contention of the petitioners as to the applicability of Section 94 is accepted, necessarily, these will be cases where the fundamental rights of the petitioners are affected, in the sense that they will be deprived of their right to property, without payment of compensation and without the authority of law. As such, these writ petitions are maintainable.

46. A contention was raised that the petitioners have a remedy before the Arbitrator in view of Section 3-G(2),(5) and (7). The contention cannot be endorsed since the issues raised in these writ petitions necessarily have to be answered by this Court, and the Arbitrator cannot decide on the constitutionality of provisions of a Statute and their interpretation. The Arbitrator can decide after the law is declared by this Court. Section 38 of the 2013 Act lays down a timeline for the purpose of complying with the obligations of the State under Schedules I, II, and III dealing with compensation, rehabilitation, and resettlement. The said obligations will have to be complied with on the basis of the law declared in this judgment.

47. In the judgment in W.P.(C)No.13795 of 2020 [Jyothi A. v. Union of India], a learned Single Judge of this Court considered a contention based on Section 94 of the 2013 Act and found that the competent authority and arbitrator is required to determine the compensation as well as elements of rehabilitation and resettlement on a case to case basis as per the First and Second Schedule of the 2013 Act. It was observed that the other procedural provisions cannot be applied to acquisitions under the NH Act and that in that view of the matter Section 94 of the 2013 Act may not have any application. The counsel for the petitioners, relying on the decision of the Hon'ble Supreme Court in Ranbir (supra), contended that the above observation could only be considered as an obiter dictum since the Court had not considered the issue on merits. I find considerable force in the said contention. In the judgment in Kunhiraman (supra), a learned Single Judge directed the authorities to ensure that the petitioner gets necessary access to his building, enough for at least an ambulance to pass, and if not, to consider the application of the petitioner under Section 94 of the 2013 Act. The Court had not gone into the question of whether Section 94 is applicable on merits. In the judgment in Ibrahimkutty (supra), a learned Single Judge held that if the petitioners had in their applications before the Arbitrator raised contentions based on Section 94 of the 2013 Act, the same will have to be considered by the authority immediately, before demolition of the buildings is done. In the said decision also, there does not appear to be any consideration of the issue on merits. However, neither of the judgments were taken up in appeal by the respondents. A similar view was taken in Noushad (supra) as well. None of the above four judgments can be treated to be a precedent regarding the applicability or otherwise of Section 94 of the 2013 Act to the acquisitions under NH Act, since the question had not been examined on merits.

48. In Transstroy (supra), a learned Single Judge of the High Court of Telangana and Andhra Pradesh was called upon to consider the issue of whether Section 94 of the 2013 Act will apply in the case of acquisition for Metro rail. The Court, however, did not have to enter into the merits of the contention since the learned Advocate General did not join issue on the contention and readily offered that if such a request is made, the same will be considered.

49. In Chellapandian (supra), the High Court of Madras considered the applicability of the provisions of the 2013 Act to acquisitions under the NH Act. The court considered the appropriateness of issuing notification under Section 103 instead of Section 105(3). The Court was of the view that if there is a failure on the part of the Central Government to issue a notification under Section 105(3), the provisions of the 2013 Act will become automatically applicable. However, taking note of the notification issued, the Court concluded that even though notification is issued invoking power under Section 103, the intention to treat the landowners similarly has been effectuated. In view of the judgment in P.Nagaraju (supra), it is not necessary to discuss the merits of the decision any further.

50. An argument was advanced based on Sections 103 and 107 of the 2013 Act to submit that since the provisions of the Act are in addition to and not in derogation of any other law for the time being in force, it follows that Section 94 will apply to acquisitions under NH Act since there is no similar provision in the NH Act. The above argument cannot be countenanced in view of Section 105, which makes the provisions of the 2013 Act not applicable to enactments specified in the fourth schedule of the Act, subject to Section 105(3).

51. In view of the findings rendered above, that all aspects contained in Sections 26 to 28 of the 2013 Act for determination of compensation will be applicable notwithstanding Sections 3-J and 3- G(7)(a) of the NH Act, that Section 28 of the 2013 Act includes the right of the owner, from whom a part of a building is acquired, to have his entire land acquired, as contemplated in Section 94, and that the prohibition in Section 94 not to put the provisions of the Act to use, for acquiring part only of a building will not apply to acquisitions under the NH Act, the writ petitions are disposed of with the following directions.

(a) There will be a direction to the competent among the respondents to consider the request of the petitioners in all these writ petitions, for acquisition of the entire building/land and either compensate the petitioners for the loss suffered by them due to the severance of the unacquired portion from the acquired portion or acquire the entire portion and pay compensation for the same as the case may be, as provided for in Sections 26 to 28 and Schedules I to III of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, read with Section 3-G(7) of the National Highways Act, 1956. While considering the above request, the respondents shall have due regard to the findings that have been rendered above on the applicability of Section 94 read with Section 28 of the 2013 Act. The above directions shall be irrespective of whether proceedings are pending before the Competent Authority or the Arbitrator appointed by the Central Government.

(b) The respondents may complete the proceedings already initiated for acquisition in accordance with the law laid down by the Hon'ble Supreme Court in P.Nagaraju (supra), and the directions contained in (a) above will not affect the said process.

(c) The directions contained in (a) shall be completed within four months from the date of receipt of a copy of this judgment.