DEPUTY COLLECTOR OF RAJPIPLA Vs. BALUBHAI MULJIBHAI MACHHI
LAWS(GJH)-1979-8-24
HIGH COURT OF GUJARAT
Decided on August 01,1979

DEPUTY COLLECTOR OF RAJPIPLA Appellant
VERSUS
BALUBHAI MULJIBHAI MACHHI Respondents

JUDGEMENT

M.K.KHAH - (1.) . But Mr. Kadri challenges the order of awarding the entire amount of solatium to the claimants and submits that on account of the restrictive nature did the tenure in the amount of solatium also the Government Would be entitled to deduction of one-third amount therefrom aS in the case of the amount of compensation. I am unable to accept this contention of Mr. Kadri. By virtue of the amendment of the Act so for as it is applicable in Gujarat brought about by the Land Acquisition (Gujarat Unification and Amendment) Act 1965 clause seventhly was added after clause sixthly to section 23 of the Act providing thus:- "In the case of any land which according to the terms of the tenure on which it is held is not transferable or partible by metes and bounds without the sanction of the State Government or any competent officer the market value of similar land held without restriction." Thus the market value of the land has to be decided without taking into consideration the restriction imposed by the restrictive tenure of the land. Reading the said clause with sec. 11A added by the Amendment carried out by the said Act 20 of 1965 it is clear that so far as fixation on themarket price is concerned it is to be done as if restriction is not in existence. But so far as payment of the amount of Compensation is concerned it is compensation which becomes payable to the claimant for the market price. A deduction has to be made in respect of a sum which would hate been payable to the State Government under any law for the time being in force bad the land been otherwise transferred. This would be clear by a glance at sec. 11A so inserted. It reads: "If the land in respect of which an award is made under sec. 11 is land which according in the terms of its tenure is not transferable or partible by metes and bounds about the sanction of the State Government or any other competent officer then out of the amount of compensation awarded therefor a sum which would have been Payee to the State Government under any law for the time being in force had the land been otherwise transferred shall be payable to the State Government and the Collector shall specify in the award the sum so payable to the State Government." It is because of these mandatory provisions contained in sec. 11-A that a provision has to be made specifying in the award the sum so payable to the State Government. The amount which is so made payable to the State Government out of the compensation awardable in respect of the market price of the land is not compensation payable as such for deprivation of the land as is the case of claimant. But it is in the nature of payment which is to be made to the Government for permitting transfer or partition of land which is not transferable or partible by metes and bounds without the sanction of the State Government on account of restrictive tenure of the land.
(2.) . Now solatium as one finds from the provisions contained in subsec. (2) of sec. 23 is a sum which is awarded in addition to the market value of the land on consideration of the compulsory nature of acquisition. Solatium in other words is something provided in terms of money as and by way of solace to the party who is deprived of his land. It will therefore have a direct nexus with the owner of the lands or person having interest in the land and it will have no connection whatsoever with the Government who by virtue of the restrictive nature of the tenure has the right to charge for permitting transfer or partition. Thus by the very nature of the relief which a solatium grants it would be an award available to the owner of the land or a person having interest in the land and not to the State who has merely a right to get a specified amount out of compensation in lieu of the amount which would have been payable to it for permitting transfer or partition of the land annexed with a restitutive tenure so that it which is not transferable or partible without the sanction of the Government I therefore see on merit in the contention raised by Mr. Kadri and hold that the entire amount of solatium should go to the claimants as held by the learned Assistant Judge. Appeal dismissed.;


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