"We find no merit in the contentions raised by the applicant, NHAI. We reaffirm the principles established in Union of India & Another Vs Tarsem Singh & others (2019) regarding the beneficial nature of granting ‘solatium’ and ‘interest’," a bench of Justices Surya Kant and Ujjal Bhuyan said.

 

NHAI filed a miscellaneous application seeking clarification on the court’s 2019 judgment in Union of India & Anr. v. Tarsem Singh & Ors. The application urged the court to specify that the ruling should apply prospectively, preventing the reopening of cases where land acquisition proceedings had been concluded and compensation had already attained finality

 

The court emphasised the need to avoid creating unjust classifications lacking intelligible differentia.

 

The NHAI led by Solicitor General Tushar Mehta submitted that if the Tarsem Singh judgment is applied retrospectively, it would necessitate reopening all acquisitions made between 1997 and 2015.

 

In 1997, an amendment by Section 3J was effected in the NHAI Act, which did not envisage either ‘solatium’ or ‘interest’ and rather declared that ‘nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act’.

 

However, after the enactment of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, its provisions were made applicable in 2015 to acquisitions carried out under the NHAI Act.

 

Mehta said permitting the decision to operate retrospectively would lead to an influx of mass litigation, requiring the reopening of closed cases. This would have significant economic ramifications, placing an additional burden of approximately Rs 92.18 crores on the public exchequer for the payment of ‘interest’ and ‘solatium’ for the delayed period, he said.

 

The landowners' counsel contended the plea represented a second attempt to evade impending liability. This application, if entertained, would effectively amount to a review of the decision in Tarsem Singh, they said.

 

Examining the issue of whether the judgment is to be applied prospectively or retrospectively, the bench said, "When a provision is declared unconstitutional, any continued disparity strikes at the core of Article 14 of the Constitution and must be rectified, particularly when such disparity affects only a select group."

 

The bench pointed out, in Tarsem Singh judgment, the top court, after considering the relevant facts, applicable laws, and precedents, held that Section 3J of the NHAI Act, by excluding the applicability of the 1894 Act and thereby denying ‘solatium’ and ‘interest’ for lands acquired under the NHAI Act, was violative of Article 14 of the Constitution.

 

The application expressly sought clarification that the decision in Tarsem Singh should be deemed to operate prospectively only.

 

"However, in our considered view, granting such a clarification would effectively nullify the very relief that Tarsem Singh intended to provide, as the prospective operation of it would restore the state of affairs to the same position as it was before the decision was rendered," the bench said.

 

The court explained the broader purpose behind Tarsem Singh was to resolve and put quietus upon the quagmire created by Section 3J of the NHAI Act, which led to the unequal treatment of similarly situated individuals.

 

"The impact of Section 3J was short-lived, owing to the applicability of the 2013 Act upon the NHAI Act from the date of 01.01.2015. As a result, two classes of landowners emerged, devoid of any intelligible differentia: those whose lands were acquired by the NHAI between 1997 and 2015, and those whose lands were acquired otherwise," the bench said.

 

To illustrate, the court said rendering the decision in Tarsem Singh as prospective would create a situation where a landowner whose land was acquired on December 31, 2014, would be denied the benefit of ‘solatium’ and ‘interest’, whereas a landowner whose land was acquired the very next day, January 01, 2015—the date on which the Ordinance was promulgated, to read the 2013 Act into the NHAI Act, would be entitled to these statutory benefits.

 

"Even if we were to assume that the decision in Tarsem Singh suffers from the vice of vagueness, the absence of a judicial directive or an explicit legislative mandate should not result in the creation of an artificial classification among a homogeneous group by the same State exercising powers under the same Statute. In this specific instance, the landowners have no discretion or choice regarding the date of land acquisition or the surrender of possession. Thus, both equity and equality demand that no such discrimination be permitted, as allowing it would be unjust," the bench said.

 

Court further said the decision in the Tarsem Singh case also cannot be assailed on the grounds that it opens a Pandora’s Box or contravenes the doctrine of immutability, as it merely allows for the grant of ‘solatium’ or ‘interest’, which are inherently embedded as compensatory benefits under an expropriating legislation. This exercise cannot be equated to reopening of cases or revisiting the decisions that have already attained finality, it said.

 

Similarly, the court said, the restoration of these twin benefits does not invite reconsideration of the merits of a decided case, re-evaluation of the compensation amount, or potentially declaring the acquisition process itself to be unlawful.

 

"Instead, the ultimate outcome of Tarsem Singh is limited to granting ‘solatium’ and ‘interest’ to aggrieved landowners whose lands were acquired by NHAI between 1997 and 2015. It does not, in any manner, direct the reopening of cases that have already attained finality," the bench said.

 

On the contrary, modifying or clarifying the judgment in Tarsem Singh would lend itself to violating the doctrine of immutability, undermining the finality of the decision, the court opined.

 

"In fact, what the applicant seeks to achieve, indirectly, is to evade responsibility and further delay the resolution of a settled issue where the directions given are unequivocal...What cannot be done directly should also not be done indirectly," the bench said.

 

This court has, on several occasions, disapproved of the practice of filing miscellaneous applications as a strategic litigation tactic aimed at neutralising judicial decisions and seeking a second opportunity for relief, the bench pointed out.

 

With regard financial burden amounting to Rs 100 crores, the bench said this argument did not persuade it due to several reasons for:

 

First, if this burden has been borne by the NHAI in the case of thousands of other landowners, it stands to reason that it should also be shared by the NHAI in this instance, in order to eliminate discrimination.

 

Second, the financial burden of acquiring land cannot be justified in the light of the Constitutional mandate of Article 300A.

 

Third, since most National Highways are being developed under the Public Private Partnership model, the financial

burden will ultimately be passed on to the relevant Project Proponent.

 

Fourth, even the Project Proponent would not have to bear the compensation costs out of pocket, as it is the commuters who will bear the actual brunt of this cost.

 

"Ultimately, the burden is likely to be saddled onto the middle or upper-middle-class segment of society, particularly those who can afford private vehicles or operate commercial ventures. We are thus not inclined to entertain the plea for prospectivity on this limited tenet," the bench said.

 

Court directed the NHAI to calculate the amount of ‘solatium’ and ‘interest’ in accordance with the directions issued in the Tarsem Singh case.