- (1.) DR. B. S. Chauhan, J. The land measuring about 1 Bigha and 10 Biswas owned and possessed by the petitioner situate in village Gayasuddinpur, Tehasil Chail, district Allahabad was requisitioned under the provision of Section 29 of the Defence of India Act, 1962 hereinafter called "the Act". For the said purpose the competent authority under the Act issued a notification on 14-1-1963. Consequent ly on 3-5-68 the said prescribed authority acquired the aforesaid land permanently under the provision of Section 36 of the said Act. The award in Arbitration Refer ence No. 8 of 1981 was made by the respondent No. 3 vide his order dated 13-12-1983.
(2.) BEING aggrieved and dis-satisfied the instant writ petition has been filed mainly on the ground that the arbitrator has manifestly erred in no awarding solatium at the rate of 15 per cent on the amount of compensation and interest at the rate of 6 per cent per annum. The main ground of challenge is quoted here as under: "the only ground on which this claim was rejected was that Sections 37 and 43 of the Defence of India Act are complete and inclusive in themselves, the claimant cannot be granted either interest or solatium as claimed under Sections 28 and 23 (2) of the Land Acquisition Act, 1894 which is not applicable to the acquisition proceedings under Sections 29 and 36 of the Act of 1962, which is totally erroneous. " In the case of Narain Das Jain v. Agra Nagar Mahapalika, 1991 (4) SCC 212, the Apex Court after referring to the catina of decisions has held that the solatium and interest must be paid in all cases even if the land acquired under any other Statute which has no specific provisions for solatium. The Court has observed as under: "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 per cent 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 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 1893 did not think it necessary to omit the provision but on the other hand transferred it to Section 23. The importance of the award of solatium can not 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 a and emergence of market value of the land acquired. It follows as a maker 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. " While considering the issue of interest the Supreme Court in the same judgment has relied upon the two earlier judgments of the Supreme Court, i. e. Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, AIR 1990 SC 2192 and Dr. Shamlal Manila v. Commissioner of Income Tax, (1964) 7 SCR 660 and held that the statutory interest must be paid for the delayed payment of compensation amount and in no event it can be described as compensation for owner's right to retain possession. In the case of Associated Cement Company Limited v. Commercial Tax Officer, Kota, AIR 1981 SC 1887, it has been held by the Supreme Court that interest is ordinarily claimed from a person who has withheld the payment of any amount payable by him. It is always calculated at the prescribed rate on the basis of actual amount withheld and the extent of delay in making the payment of the same as such interest is compensatory in character.
(3.) IN the case of Gowardhans v. Union of INdia, Civil Appeal No. 3058 of 1983 decided on 31-1-1983, the Supreme Court has observed as under : "the payment of solatium at 15 per cent is obligatory under the Land Acquisition Act and for the same reason should be regarded as obligatory under the Defence of INdia Act. . . . . As regards the claim of interest, we think that it is only right that interest should be awarded to the applicant for the entire period upto the date of payment. " In the case of Om Prakash v. State of U. P, AIR 1974 SC 1202, the Supreme Court had taken the view that if there are two modes of acquisition of land, the one which is more beneficial to the land owners should be opted otherwise it would be discriminated. While deciding that ease the Supreme Court had relied upon its ear lier judgment in the case of Nagar Improvement Trust and another v. Vithal Rao and others, AIR 1973 SC 689, in which a seven judges Bench has held as under : "it is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts would unable the State to give one owner different treatment from another equally situated owner is discriminated against, can claim the protection of Article 14. ";