SUDHEER KUMAR Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA

JUDGEMENT

(1.) "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 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 Sec. 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. Sec. 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 Sec. 3-G(7), which deals with the determination of the amount of compensation. The only provision which was almost akin to Sec. 49 of the 1894 Act was Sec. 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. Sec. 105 (1) of the 2013 Act says that subject to sub-sec. (3), the provisions of the Act will not be applied to enactments relating to land acquisition, which are specified in the Fourth Schedule. Sub-sec. (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.