Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
NARAIN DAS JAIN (SINCE DECEASED) BY L.RS.
Vs.
RESPONDENT:
AGRA NAGAR MAHAPALIKA, AGRA
DATE OF JUDGMENT14/02/1991
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
SAIKIA, K.N. (J)
CITATION:
1991 SCR (1) 389 1991 SCC (4) 212
JT 1991 (1) 461 1991 SCALE (1)215
ACT:
Land Acquisition Act,1894-Section 23(2)-Solatium-
Payment of-Necessity for.
U.P.Town Improvement Act, 1919-Section 36(2)-
Acquisition of land-Payment of Compensation-Whether arises.
Words and Phrases: ’Solatium-Meaning of.
HEADNOTE:
Appellant’s land was acquired by the Agra Town
improvement Trust under the provisions of the U.P. Town
Improvement Act, 1919. For the land acquired, the
appellant was paid a paltry sum. No solatium was awarded
as none was awardable under the Act. [391B].
The appellant sought a reference before the Nagar
Mahapalika Tribunal. The Tribunal raised the compensation
to Rs.1,45,839 and also awarded interest at the rate of 4-
1/2 percent.
Still dissatisfied, the appellant moved the High
Court in appeal. The Nagarpalika also filed a cross
appeal against enhancement. The High Court allowed the
appeal of the appellant and further enhanced the
compensation by Rs.48,613 and the rate of interest to 6
percent. On the amount of Rs.48,613 solatium at the rate of
15% was awarded by the High Court. No solatium was
however awarded on the slim Of Rs. 1,45,839
awarded by the Tribunal, on the ground that the
appellant had not made a grouse or laid any claim to it in
his grounds of appeal. The High Court negatived the
contention of the appellant that his claim to solatium
was not based on any demand at his instance but it
was rather a statutory duty of the Court to grant it.
Allowing the appeal, this Court,
HELD: (1) Solatium, as the word goes, is "money
comfort" quantified by the statute, and given as a
conciliatory measure for the Compulsory acquisition of the
land of the citizen, by a welfare state such as ours.
[392D-E]
390
(2) The importance of the award of solatium cannot be
undermined by any procedural brocades. It follows
automatically the market value of the land acquired, as a
shadow would to a man. It springs up spontaneously as a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
part of the statutory growth on the determination and
emergence of market value of the land acquired. That it
falls to be awarded by the Court "in every case" leaves no
discretion with the court in not awarding it in some cases
and awarding in others. [393A-B]
Om Prakash v. State of Uttar Pradesh, [19741 2 S.C.C.
731, referred to.
(3) Solatium in the scheme of section 23(2) of the
Land Acquisition Act is part of the compensation and
sections 28 and 34 of the said Act Provide for payment of
interest on the amount of compensation. [394H-395A]
Periyar & Pareekanni Rubbers Ltd. v. State of
Kerala, A.I.R. 1990 S.C. 2192, referred to.
(4) Solatium being part of compensation must
fetch statutory interest from the date of dispossession
of the land owner tin date of payment. [395D]
Dr. Shamlal Narula V. Commissioner of Income
Tax Punjab, [1964] 7 SCR 668, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION:Civil Appeal No.2327 of
1977.
From the Judgment and Order dated 23.5-1975 of the
Allahabad High Court in First Appeal No. 302 of 1966.
K.C. Jain and H.K. Puri for the Appellants.
A.P.S. Chauhan, Roopendra Singh and A.S. Pundir for the
Respondent.
The Judgment of the Court was delivered by
PUNCHHI, J. This appeal by special leave is directed
against the common judgment and order of the Division Bench
of the Allahabad High Court dated May 23, 1975.
The appellant herein (since deceased and represented
by Legal
391
Representatives) was the owner of 48613 sq.- yards of land
in village Ghatwasan, Teh. Sadar, Dist. Agra. The same was
acquired by the Agra Town Improvement Trust under the
provisions of the U.P. Town Improvement Act, 1919.
Notification under section 36(2) of the aforesaid
Act. which is analogous to section 4 of the Land
Acquisition Act, 1894 was issued on 29-7-1950 and the
acquisition proceedings culminated by an award of the
Land Acquisition Collector, followed by taking
possession of the land from the appellant on 11-3-
1953. For the land acquired, the appellant was paid a
partly sum of Rs. 1344-2 annas &, 6 paise as
compensation. No solatium was awarded as none was
awardable under the U.P. Town Improvement Act, 1919.
Feeling dissatisfied the appellant sought a
reference under section 18 of the Land Acquisition
Act before the Nagar Mahapalika Tribunal, a creature
of the U.P. Town Improvement Act, 1919. The
appellant asserted before the Tribunal that he should
have been allowed a rate of Rs.8 per sq. yard for the
acquired land. The Tribunal partly accepted the claim of
the appellant by its order dated 5-11-1965 raising
compensation to the rate of Rs.3 per sq. yard and thus
held the appellant entitled to a total sum of Rs. 1,45,889
inclusive of the sum of about Rs. 1344 already
received by him. The Tribunal also awarded interest
on the amount due at the rate of 4-1/2 percent per
annum with effect from 11-3-1953, the date of taking
possession of the land till its payment.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
Still dissatisfied, the appellant moved the High
Court of Allahabad in appeal; a forum provided under
the U.P. Town Improvement (Appeals) Act, 1920, but
on grounds analogous to section 100 CPC.
Correspondingly the Nagar Mahapalika also filed a
cross appeal against enhancement. The Tribunal disposed
of both the appeals by a common judgment. The
appellant was awarded enhanced compensation at the
rate of Rs.4 per sq. yard. Consequently an additional sum
of Rs.48613 was held due to him. The High Court also
changed the rate Of interest from 4-1/2 percent per
annum to 6 percent per annum, correcting the error
committed by the Tribunal. The claim of the
appellant to solatium at the rate of 15 per cent on
the sum awarded uptill the Tribunal’s level was
rejected as the appellant had-not claimed the same
before the Tribunal and had not made a grouse
thereof in his memorandum of appeal before the High
Court. So on the sum of Rs. 1,45,839 assessed as
market value by the Tribunal, no Solatium was
awarded. On the amount of Rs.48,613 enhanced by
the High Court, solatium at the rate of 15 per cent
was awarded by the High Court, and interest thereon
was also awarded from 11-3-1953.
392
the date of taking possession till its payment. The
appeal of the Nagar Mahapalika was dismissed. The
appellant alone who is before us has challenged the
common judgment of the High Court.
No dispute herein has been raised to any further
increase in the market value of the land. The claim
vehemently put forth is with regard to the solatium of
15 per cent on the market value of the land and
which claim, partly has been negatived by the High
Court. It is not disputed that if the claim is valid, the
rate of solatium would be 15 percent of the market
value. Though a faint attempt was made to raise claim
to solatium at the rate of 30 per cent and interest to 9
per cent per annum in terms of the amendments made
in the Land Acquisition Act, 1894 by means of Act
No. 68 of 1984, but such claim was abandoned in
the next breath. So we are thus concerned only to
the claim of solatium which has been declined by the High
Court.
Section 23(2) of Land Acquisition Act, as it then
was, provided that in addition to the market value of
the land, as provided in sub-section (1) of section 23,
the court shall in every case award a sum of rupees
fifteen per centum on such market value in
consideration of the compulsory nature of acquisition.
Solatium, as the word goes, is "money comfort",
quantified by the statute, and given as a conciliatory
measure for the compulsory acquisition of the land of
the citizen, by a welfare state such as ours. The concern
for such a citizen was voiced by the Law Commission
of India in its Report submitted in 1957 on the
Need for Reform in the Land Acquisition by observing as
follows:
"We are not also in favour of omitting Section
23(2) so as to exclude solatium of 15% for
the compulsory nature of the acquisition. It
is not enough for a person to get the
market value of the land as compensation in
order to place himself in a position similar to
that which he could have occupied had there
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
been no acquisition; he may have to spend a
considerable further amount for putting
himself in the same position as before..... As
pointed out by Fitzgerald the community has no
right to enrich itself by deliberately taking away
the property of any of its members in such
circumstances without providing adequate
compensation for it. This principle has been in
force in India ever since the Act of 1870. The
Select Committee which examined the Bill of 1883
did not think it necessary to omit the provision
but on the other hand transferred it to Section
23."
393
The importance of the award Of solatium cannot
be undermined by any procedural blockades. It follows
automatically the market value of the land acquired,
as a shadow would to a man. It springs up
spontaneously as a part of the statutory growth on
the determination and emergence of market value of the land
acquired. It follows as a matter of course without any
impediment. That it falls to be awarded by the Court "in
every case" leaves no discretion with the court in not
awarding it in some cases and awarding in others. Since the
award of solatium is in consideration of the compulsory
nature of acquisition, it is a hanging mandate for the court
to award and supply the omission at any stage where the
Court gets occasion to amend or rectify. This is the spirit
of the provision, wherever made.
It is pertinent to note here that the claim of
the appellant to solatium was not entertainable before the
Land Acquisition Collector, taking proceedings of the
acquisition under the U.P. Town Improvement Act in the
absence of a provision allowing it. Rather the amendments
and modifications set out in the schedule attached to the
U.P.Town Improvement Act made read that way. The payment of
solatium as awardable under section 23(2) of the Land
Acquisition Act was specifically not made applicable to the
land acquired under the U.P. Town Improvement Act. Such
amendment to the schedule, however, being violative of
Article 14 of the Constitution was struck down by this Court
on 14-12-1973 in Om Prakash & Another v. State of U.P. and
Others v. State of U.P. and Others, [1974] 2 SCC 731. This
Court took the view that if the government could
acquire land for a Mahapalika or other local body by resort
either to the Land Acquisition Act or the U.P. Town
Improvement Act, it would in the former case have to pay
solatium and in the latter case not at all and which would
lead to discrimination, and consequently granted relief of
solatium to the land owner whose land was acquired. On the
law laid down by this Court, the High Court rightly took the
view that since the amendments made to the schedule to the
Town Improvement Act had gone out of the way of the
appellant, the compensation due to him would have to be
assessed in accordance with the provisions of section 23 of
the Land Acquisition Act. Holding so, the High Court
awarded solatium on the amount enhanced by it and for that
part rightly.
The denial of the solatium to the appellant on the sum
awarded by the Tribunal is based on the reasoning that
firstly the Collector had not awarded solatium and the
appellant while taking the matter to the Tribunal had not
raised such claim. Secondly after the order of the
Tribunal the appellant when taking the matter to the High
Court in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
394
appeal, had not made a grouse and laid claim to it in his
grounds of appeal. The High Court, it appears was even then
prepared to grant solatium to the appellant and offered the
appellant to seek amendment of the grounds of appeal but the
appellant declined to do so asserting that his claim to
solatium was not based on any demand at his instance but was
rather a statutory duty of the Court to grant it, as
otherwise, the mandate of section 23(2) would fail. The
High Court negatived such contention.
We do not appreciate the distinction made by the High
Court in this regard. The appellant had all the same not
pleaded for grant of solatium in the grounds of appeal
before the High Court while claiming enhanced
compensation, and yet the High Court felt that it
was under the statutory duty to grant solatium on the
amount enhanced by it. The High Court did not shut out
the claim of the appellant on the ground that he had
not asked for it specifically in the grounds of
appeal. If that is so, the legal error which was
otherwise patent needed to be rectified by the High
Court in favour of the appellant; more so when there
was a cross appeal of the Nagar Mahapalika
before it and resort could be had to the provisions of
Order 41 Rule 33 C.P.C. Additionally, the claim to
solatium arose in this regard on the basis of Om
Prakash’s case (supra) on 14-12-1973 by which the
provisions of the U.P. Town Improvement Act
whereunder solatium was withheld were struck down, and
on that date the appeal of the appellant against the
order of the Tribunal dated 5-11-1965 was pending
before the High Court. The claim to solatiun surfaced
and compulsory acquistition of the land but also on
the law on the subject being declared by this Court
in Om Prakash’s case (supra). We are thus of the
view that the High Court should have measured the
claim of the appellant to solatium on the sum
awarded by the Tribunal with the same yardstick as
to the sum awarded by it and modified in decree
accordingly. We have thus no hesitation in upsetting
the judgment and order of the High Court in this
regard and award to the appellant solatium at the rate
of 15% on the entire market value of the land, which
would include a sum of Rs. 1,45,839 left out by the
Tribunal and the High Court. The appellant further shall
be entitled to the interest at the rate of 6% per annum
from 11-3-1953, the date of taking possession, till
the date of payment of the sum due as solatium. The
appeal shall stand allowed accordingly.
Before parting with the judgment, we need to clarify
that solatium in the scheme of section 23(2) of the Land
Acquisition Act is part of the compensation and section 28
and 34 of the said Act pro-
395
vided payment of interest on the amount of compensation.
This Court recently in Periyar and Pareekanni Rubbers Ltd.
v. State of Kerala, AIR 1990 SC 2192 has ruled that
compensation is recompense or reparation to the loss
caused to the owner of the land and that payment of interest
on solatium is to recompensate the owner of the land the
loss of user of the land from the date of taking possession
till date of payment into Court. Therein the land owner was
held entitled to interest on solatium). Attention, however,
may be invited to Dr. Shamlal Narula V. Commissioner of
Income-tax Punjab, [1964] 7 SCR 668. The quality of the sum
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
paid as interest was held somewhat different. It was ruled
therein that the statutory interest paid under the Act is
interest paid for the delayed payment of compensation amount
and in no event can that be described as compensation
for owner’s right to retain possession, for he has no
right to retain possession after possession was taken under
sections 16 and 17 of the Act. The quality of the receipt
of interest can be left by us here, whether it be a
recompense for the loss of user of land or is a sum paid for
the delayed payment of compensation. Solatium being part of
compensation must fetch statutory interest from the date of
dispossession of the land owner till date of payment.
Accordingly, we allow this appeal and direct that the
appellant shall also be paid solatium at the rate of 15% on
the left out amount of Rs. 1,45,839 and interest at the rate
of 6% per annum thereon from 11-3-1953, the date of taking
possession till date of payment, and that too with costs.
R. S. S. Appeal allowed.
396