STATE OF MADRAS Vs. MOHAMED MUSTAFA
LAWS(MAD)-1970-3-15
HIGH COURT OF MADRAS
Decided on March 25,1970

STATE OF MADRAS Appellant
VERSUS
MOHAMED MUSTAFA Respondents

JUDGEMENT

- (1.) IN this appeal which is against the judgment and decree of the learned Fourth assistant Judge of the City Civil Court, Madras, the question relates to the sufficiency of compensation granted to the respondent as and towards the market value of the lands acquired under the provisions of the Land Acquisition Act (Act 1 of 1894 ). By a notification under Section 4 (1) of the Act, dated March 7, 1962, an extent of 7 Grounds 75 sq. ft. in S. No. 34/3 in the village of Puliyur near kodambakkam, was acquired for the construction of a sewage pumping station. The Land Acquisition Officer, after due notice to parties, granted a compensation at the rate of Rs. 4,587/- per ground. He also awarded a compensation at the rate of Rs. 5/- per tree and there were 39 such trees. In addition thereto, a claim was made before the Land Acquisition Officer on the ground that the unacquired portion of land has been injuriously affected by reason of the acquisition of the acquired land which is a roadside land. The case of the respondent before the Land acquisition Officer was that the roadside lands were acquired and the balance of his holding has been left out practically as hinderland and it has access only through a passage 56 feet in width and about 200 feet in length, which passage leads on to the interior lands. The Land Acquisition Officer negatived the claim for such injurious affection. On a reference under S. 18 of the Land Acquisition Act, the Court confirmed the award of the Land Acquisition Officer in so far as it related to the market value of the acquired land. The Court, however, increased the compensation by Rs. 2/- per tree and granted damages under the head of injurious affection, to the tune of Rs. 3,000/ -. Whilst granting such damages, the Court also awarded solatium thereon at 15 per cent, evidently under the view that solatium has to be given even in cases where the interested person is granted compensation as and towards damages for injurious affection. The State is the appellant before us and it questions the grant of the solatium in the manner stated above, but has also added in the Memorandum of grounds of Appeal, an objection to the grant of the additional compensation for trees. The respondent has filed Cross-Objections and he claims that the Court failed to appreciate the real market value of the acquired land and that it ought to have granted a compensation at the rate of Rs. 5,000/- per ground.
(2.) WE may at the outset reject the appeal in so far as it relates to the additional grant made by the Court below for Palmyrah trees as it is not even seriously pressed and there is no evidence to disturb the finding.
(3.) THE next and the most formidable objection raised by the appellant is that the grant of 15 per cent solatium as an annex to the damages awarded to the interested person under the head "injurious affection" is opposed to law. Under the land Acquisition Act, the Court, while determining the amount of compensation to be awarded for lands acquired under the Act, shall take into consideration the market value of the land at the date of the publication of the notification under S. 4 and in addition thereto, the Court shall in every case award a sum of Rs. 15/per centum on such market value in consideration of the compulsory nature of the acquisition. The word "market-value" appears in clause (i) of sub-section (1) of S. 23. It again reappears in sub-section (2) of S. 23. In sub-section (2) of S. 23, the solatium, as it is commonly called, is awardable on such market value. The word ''such'' in sub-section (2) of S. 23 has to be given its full weight as it has a special signification. It has reference to the market value determined by the Court under cl. (i) of sub-section (1) of S. 23. The other clauses appearing in sub-section (1) of s. 23 relate to various heads totally unconnected with the market value of the land. For example cl. (iv) of sub-section (1) of S. 23 provides the head of damage which an interested person may sustain at the time of the acquisition and by reason thereof resulting in his other property moveable or immoveable, being injuriously affected. The Section and Cls. Nos. (iii) and (vi) specifically speak of and provide for, damage resulting from and consequential upon compulsory acquisition. Even cl. (v) is an item which is very much akin to damage, for it provides for the payment of such reasonable expenses to the interested person if he is compelled to change his residence or place of business in consequence of the acquisition. Here again, there is no question of any market value of the land being assessed or touched upon. It therefore follows that it is only in the first clause in sub-section (1) of S. 23, that the words "market value of the land'' appear, and it is to this phrase is interlaced the solatium which is expressly provided for in sub-section (2) of S. 23. It therefore follows that if any damage is awarded by Court under the head of injurious affection within the meaning of cl. (iv) of sub-section (1) of S. 23, then such amount or such damage granted has no relation to the market value of the land and the solatium which is awardable only as a necessary annexure to market value cannot be awarded and annexed to such damage as well. This is what the lower Court has done in the instant case. The learned counsel for the respondent, however, invited our attention to two decisions, one of the Bombay High Court and the other of our Court, and contends that such grant of solatium is sustainable. In Vakratunda Chintaman Deo v. Special Land Acquisition Officer, Poona, AIR 1960 bom 232, the Court was concerned with the evaluation of certain benefits which arose from the land, but which belonged to the interested person. While doing so, they emphatically observed that the compensation so reckoned as a substitute for the benefits acquired, tantamounts to the determination of the market value of the property. In that view, solatium also was granted. That is not the case here. The ratio in State of Madras v. Balaji Chettiar, has no application at all, because there the Court was primarily concerned with the vires of Act XXXVII of 1950, whereunder the grant of solatium was abolished. Incidentally, the question which arose before the Division Bench in that case was whether the market value within the meaning of S. 23 (1) was integrated with the solatium awardable under S. 23 (2 ). Their Lordships expressed the view that the two are separable. But, the ratio in that case, however does not touch upon the issue before us as to whether the solatium has to be necessarily granted in a case where damages for injurious affection under cl. (iv) of S. 23 (1) are granted and whether such a grant is a necessary attribute even in the case of grant of damages. We have already expressed the view that in cases where damages qua damages are awarded, the question of the interested person gaining solatium as if it is a statutory right, does not at all arise. It is only in cases where the Court determines the market value of the land or the benefits or rights arising thereunder, which in fact is only a substitute for the reckoning of market value of the land, then and in only such circumstances solatium gets integrated with it and can be granted under s. 23 (2 ).;


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