ORDER
Chandrashekaraiah, J.
1. In these writ petitions the petitioners have sought for a declaration that the provisions of the National Highways Act, 1956 (Amendment) (Act 16 of 1997) (hereinafter referred to as ‘the Highways Act’), are unconstitutional and for quashing of the notifications dated 2-2-1999 and 15-9-1999 issued under Sections 3-A(1) and 3-D of the Highways Act.
2. Though the petitioners have challenged all the provisions of the Act 16 of 1997, have confined their argument only insofar as it relates to exclusion of the application of the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘LA Act’).
3. Sri Kothavale, learned Counsel for the petitioners submitted that the Parliament has no power to enact a law called the Highways Act, for the purpose of acquisition of land, which is diametrically opposed to the LA Act. In support of his contention he has referred to the provisions of the Act, with reference to the LA Act and submits that the provisions introduced by way of an amendment by Act 16 of 1997 are to be declared as unconstitutional. Section 3-A of the Highways Act is similar to Section 41) of the LA Act. Similarly, Section 3-C is similar to Section 5-A of the LA Act. Section 3-D of the Highways Act is similar to Section 6(1) of the LA Act and Section 3-E is similar to Section 16 of the LA Act. Section 3-G is similar to Section 23 of the LA Act. Section 3-J specifically excludes the application of the Land Acquisition Act for the purpose of determining the compensation in respect of the lands acquired under the Highways Act.
4. The Union of India, in its statement of objections has stated that the object of the amendment Act is to remove the inordinate delay in acquisition of lands which has been one of the bottlenecks in the fast implementation of the National Highways Project, having faced inordinate delay and increase in the cost due to the long process of land acquisition under the LA Act.
5. Since the provisions referred to above from Sections 3-A to 3-E of the Highways Act are similar to the provisions of the LA Act, I find no reason to consider the contentions challenging the above said provisions of the Act, since the petitioners confined their arguments only insofar as Section 3-J of the Highways Act.
6. The learned Counsel submits that under Section 3-A of the Highways Act, land is proposed to be acquired for a public purpose if it is required for the building, maintenance, management or operation of a national highway or part thereof, by a notification. Under Section 3-D of the Highways Act, on the report submitted by the Competent Authority the Central Government shall declare by notification in the Official Gazette that the land shall be required for the purpose or the purposes mentioned in Section 3-A of the Highways Act. Prior to this Act 16 of 1997, the Central Government use to acquire the land for the purpose referred to under Section 3-A of the Highways Act, under the provisions of the LA Act. But in view of the urgency and to overcome the inordinate delay in acquisition of land, the Union of India, by Act 16 of 1997, introduced certain amendments for the purpose of acquisition of land.
7. If the land is acquired under the LA Act, the landowner is entitled for additional market value under Section 23(1-A) and solatium under Section 23(2) of the LA Act. In addition, the landowner is also entitled for interest on the amount awarded at 9% per annum from the date of taking possession till the date of payment and in the event the said amount is not paid within one year interest at 15% per annum. Whereas, under the provisions of the Highways Act, no such benefit is provided to the landowner who loses his land. Therefore, according to the Counsel for the petitioners denial of additional market value, solatium and interest as provided under the LA Act, results in discrimination between a landowner who is deprived of the land under the Highways Act and the person who is deprived of his land under the LA Act.
8. The learned Advocate for the Union of India, submits that acquisition of land under the Highways Act, being distinct and separate and as the Highways Act, specifically omits to provide for interest and solatium, the landowner is not entitled for such benefits since the omission is deliberate, relying upon the decision in the case of Union of India and Others v. Dhanwanti Devi and Ors., .
9. Section 3-J of the Highways Act reads as follows.–
“3-J. Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act”.
In view of the specific exclusion of application of the LA Act, under Section 3-J of the Act 16 of 1997, no doubt under the Highways Act, the landowner is not entitled for additional market value, solatium and interest as provided under the LA Act.
10. The acquisition of land whether it is under the LA Act or under the Highways Act, is for a public purpose. But, the words ‘public purpose’ is not defined under the Highways Act, But Section 3(f) of the LA Act, defines what is public purpose. This definition is inclusive definition. In view of this inclusive definition any acquisition of land under the National Highways Act, is for a public purpose. Section 3-A of the National Highways Act provides for acquisition of land by the Central Government for a public purpose. The acquisition of land under both the Acts is compulsory in nature since the acquisition is against the will of the landowner. If any land is acquired under the LA Act, for a public purpose, the landowner is entitled for additional market value, solatium and interest in addition to the market value. Whereas, if the land is acquired under the Highways Act, the landowner is entitled for only market value and interest as provided under this Act. From this it is seen there is discrimination between a person and person in the matter of payment of compensation for the land acquired under the LA Act and the Highways Act.
11. Sri N. Devdas, learned Counsel for the Union of India, relying upon the decision in Union of India’s case, supra, submits that the omission to pay the benefits referred to above by the Legislature regarding additional market value, solatium and interest is deliberate and therefore the owners are not entitled to the said benefits under the Highways Act. The facts of the case in the above decision is: the Jammu and Kashmir Requisitioning and Acquisition of Immoveable Property Act, 1968, has not provided for payment of interest and solatium. This was held to be valid by the Supreme Court, holding that the omission to pay solatium and interest in addition to the market value by the Legislature is deliberate. The Jammu and Kashmir Requisitioning and Acquisition of Immovable Property Act, is a State Act.
12. The Supreme Court in the case of State of Madhya Pradesh v G.C. Mandawar, has held as follows.–
“On these provisions, the position is that when a law is impugned under Article 13, what the Court has to decide is whether “that” law contravenes any of the provisions of Part III. If it decides that it does, it has to declare it void; if it decides that it does not, it has to uphold it. The power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open, to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different Legislatures. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application”,
(emphasis supplied)
From a reading of the above said decision it is clear when the same Legislature enacts two different laws but in substance they form one legislation it may be open to the Court to disregard the form and treat them as one law and strike it down if it is hit by Article 14 of the Constitution.
13. In the case of Dhanwanti Devi, supra, the acquisition was under the State law, the source of authority to legislate the law by the State is different from the source of authority to legislate the law by the Union of India. Therefore, the decision rendered by the Supreme Court in the case of Dhanwanti Devi, supra, is of no assistance to the respondents.
14. The Supreme Court in the case of Om Prakash and Anr. v State of Uttar Pradesh and Ors., has held as follows.–“16. There can be no dispute that the Government can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified Land Acquisition Act, 1894, or under that Act as modified by the Adhiniyam. If it chooses the first course, then the landowners concerned will be entitled to better compensation, including 15% solatium; the potential value of the land etc.; nor will there be any impediment or hurdle — such as that enacted by Section 372(1) of the Adhiniyam — in the way of such landowners, dissatisfied by the Collector’s award, to approach the Court under Section 18 of that Act. If the Government, for the same purpose, resorts to the Land Acquisition Act as modified by the Adhiniyam, the landowner(s) concerned will suffer from all the disabilities or restrictions envisaged by the modifications. In this way, the impugned legislation enables the Government to discriminate in the matter of acquiring land between similarly situated landowners.
17. The impugned modifications do not satisfy the well-known tests of reasonable classification which is permissible for the purpose of legislation. It is not founded on any intelligible differentia, nor has this differentia a rational nexus with the object sought to be achieved, namely, compulsory acquisition of land for a public purpose. It is not necessary to dilate further on this point as this matter stands concluded by this Court’s decision in Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors., case by the ratio of which we are bound. It will be sufficient to close the discussion by extracting here what Sikri, C.J., speaking for the Court said in that case:
“Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classifications be made on the basis of authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired.. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14″.
The above decision rendered by the Supreme Court is by following a decision of the Constitution Bench in the case of Nagpur Improvement Trust, supra.
15. The Constitution Bench of the Supreme Court in the case of P. Vajrauelit Mudaliar v. The Special Deputy Collector for Land Acquisition,
West Madras and Anr., has held as follows.–
“(20) Now what are the differences, between persons owning lands in the Madras City or between the lands acquired which have a reasonable relation to the said object. It is suggested that the differences between people owning lands rested on the extent, quality and the suitability of the lands acquired for the said object. The differences based upon the said criteria have no relevance to the object of the Amending Act. To illustrate; the extent of the land depends upon the magnitude of the scheme undertaken by the State. A large extent of land may be acquired for a University or for a network of hospitals under the provisions of the principal Act and also for a housing scheme under the Amending Act. So too, if the housing scheme is a limited one the land acquired may not be as big as that required for a big University. If waste land is good for a housing scheme under the Amending Act, it will equally be suitable for a hospital or a school for which the said land may be acquired under the Principal Act. Nor the financial position or the number of persons owning the land has any relevance, for in both the cases land can be acquired from rich or poor, from one individual or from a number of persons. Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the principal Act; out of two adjacent plots belonging to the same individual and of the same quality and value, one may be acquired under the principal Act and the other under the Amending Act. From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved. It is said that the object of the Amending Act in itself may project the differences in the lands sought to be acquired under the two Acts. This argument puts the cart before the horse. It is one thing to say that the existing differences between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the differences. Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or in the lands on the basis of the object. The object is to acquire lands for housing schemes at a low price. For achieving that object, any land falling in any of the said categories can be acquired under the Amending Act. So too, for a public purpose any such land can be acquired under the principal Act. We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification. We, therefore, hold that the Amending Act clearly infringes Article 14 of the Constitution and is void”.
In the case of State of Andhra Pradesh and Ors. v. McDowell and Company and Ors., the Supreme Court had an occasion to consider whether classifying toddy as a separate class is hit by Article 14 or not. Dealing with this the Supreme Court has held the Act prohibiting the production and manufacture of all intoxicating liquors while exempting toddy from the said prohibition is not discriminatory. Toddy is a class apart. It is drawn from tree. The Excise Act and the Rules make a distinction of toddy on the one hand and other intoxicating liquors on the other, though toddy is also included within the meaning of intoxicating liquors. Therefore, it cannot be said that it is not a case of reasonable classification having regard to the object of legislation.
16. In the instant case, the acquisition is under the Highways Act, for a public purpose. Prior to the coming into force of the Amending Act 16 of 1997 ail acquisition of land for the purpose required for the National Highways was to be made under the provisions of the LA Act. But, in order to avoid inordinate delay because of the lengthy process to be adopted for acquisition of the land, the Amending Act 16 of 1997 came into force. Both the Highways Act and LA Act are by the Union of India. If that is so, the source of authority to legislate the law in both the cases is by the Union of India. Therefore, in view of the law laid down by the Supreme Court, in the case of State of Madhya Pradesh, supra, both the enactments are to be treated as one law. Since the acquisition under both the Acts, is for public purpose and is compulsory in nature there is no reason to exclude the application of the LA Act insofar as it relates to payment of compensation as it results in discrimination between the landowners who are similarly situated. Further, the classification, if any, is not founded on any intelligible differentia and has no rational nexus with the objects to be achieved.
17. Further, in almost all enactments which provide for acquisition of land whether it is under a Central Act or State Act, normally the provisions of the LA Act are made applicable insofar as compensation is concerned. In the instant case, since the acquisition of land is for public-purpose and it is compulsory in nature, the exclusion of the provisions of the LA Act, under Section 3-J of the Highways Act, is held to be unconstitutional as the landowner is deprived of the benefit to which he is entitled to, if his land is acquired under the LA Act. Hence, I am of the considered view that Section 3-J of the Highways Act, is unconstitutional and hit by Article 14 of the Constitution of India. Further, as the petitioners are deprived of their land against their will for a public purpose. I hold the landowners are entitled for additional market value under Section 23(1-A), solatium under Section 23(2) and interest as provided under Section 28 of the LA Act.
18. In the result, I pass the following order:
Writ petitions are disposed of in the following terms:
Section 3-J of the Highways Act as amended by Act 16 of 1997 is declared as unconstitutional and accordingly struck down.
The petitioners are entitled for additional market value under Section 23(1-A), solatium under Section 23(2) and interest under Section 28 of the LA Act, in addition to the market value.