BRIJ BEHARI SAHAIversusSTATE OF UTTAR PRADESH

A

                           BRJJ BEHARI SARAI                                       -r-
                                   v.
                        STAIB OF UTTAR PRADESH
B
                                AUGUST 5, 1986

     [E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.]

          Land Acquisition Act, 1894: ss. 23 & 35-Temporary occupation


                                                                                         -
     of land-Statutory so/atium on the compensation decreed-Whether
c    admissible.

           The appeals raise the question whether in a case where the Land
     Acquisition Officer takes temporary occupation, the person interested
     in the land was entitled to solatium on the compensation decreed in a
D    proceeding under s. 35 of the Land Acquisition Act. The High Court
     refused to allow it.                                       -

           Dismissing the appeals, the Court

           HELD: I. The provisions of s. 23(2) of the Land Acquisition Act
E    providing for payment of statutory solatium are not attracted to a case
     of compensation under s. 35 of that Act. [470HJ

            2. Temporary occupation of land, provided in Part VI of the Act,
    ·is distinct from, and is not included in, acquisition of land under Part II
     of the Act because in acquisition in exercise of the right of eminent
F    domain title of the owner is extinguished and the property vests in the
     State, whereas when temporary occupation is taken the title of the
      owner remains untouched. [470C-D]

           Tan Bug Taim v. Collector of Bombay, AIR 1946 Bom. 216 refer
     red to.
G
           3. Clause "secondly" in s. 23(1) of the Act is not applicable to
     temporary occupation covered bys. 35 of the Act. Statutory solatium as
     provided in s. 23(2) of the Act does not apply to a case of damage
     covered by clause "secondly" in s. 23( 1) itself. "Market value"
     occurs in the first clause of s. 23(1) of the Act and sub-s. (2) of s. 23
H    refers to market value. Solatium has reference to market value and the
                                        468
                                    B.B. SAHA! v. STA1EOFU.P.                 469

    -l     mandate to pay solatium is only in respect of market value. Compensa-     A
           tion under s. 35 of the Act has no reference to market value and the
           actual loss sustained by the persons interested in the land only is in-
           tended to be compensated. [470•'-H]

                 CML APPEllATE JURISDICTION: Civil Appeal Nos. 1041 ol               B
           1972 and 578 of 1975

                From the Judgment and Order dated 28.3.1970 of the Allahabad
           High Court in First Appeal No. 141of1958.

-               Manoj Swarup and Pramod Swarup for the Appellant.

                 Prithvi Raj and Mrs. Shobha Dikshit for the Respondent.
                                                                                     c

     ;..        The Judgment of the Court was delivered by

                 RANGANA TH MISRA, J. Both these appeals ar~ by certificate          D
           from the High Court of Allahabad and are directed against its modi-
           fying common judgment in a proceeding under Section 35 of the Land
           Acquisition Act, 1894 ('Act' for short).

                Appellant Brij Behari Sahai held on lease little more than 42
         acres of agricultural land out of Military Estates at Allahabad near the    E
         confluence of the Ganges and the Yamuna. For the purposes of
         Kumbh Mela in 1954 possession of the said land was taken from
         November 1953 till March 1954. The Land Acquisition Officer made
         an Award of compensation and there being difference as to the adequ-
      ~· acy of the compensation, the matter was referred to the Court for
         decision. Against the decision of the Court enhancing the compensa-         F
         tion, the State of Uttar Pradesh carried an appeal to the High Court of
         Allahabad. Brij Behari Sahai preferred a cross-objection asking for
         further enhancement of the compensation. The High Court dealt with
         the appeal and the cross-objection and enhanced the compensation on
         five heads as indicated in the penultimate paragraph of its judgment
         but refused to allow statutory solatium of 15%. Against this judgment       G
         of the High Court two separate appeals-one by Brij Behari Sahai and
         the other by the State of Uttar Pradesh have been brought before this
         Court.

                Claimant's, counsel asked for enhancement of the compensation
           on the basis of evidence but in the course of hearing we declined to      H
    470                    SUPREME COURT REPORTS              [1986] 3 S.C.R.

A   entertain such a contention. Similarly, on behalf of the State challenge
    was made to the quantum of compensation decreed in the High Court
    and we did not agree to go into that aspeci. The appeal of the State
    has, therefore, to be dismissed. One contention raised by the claimant
    relates to entitlement of solatium on the compensation decreed. That
B   question requires to be examined.

          It is a fact that the High Court referred to Section 23 (2) of the
    Act while fixing the quantum of compensation. We are of the view that
    Part VI of the Land Acquisition Act contains a complete code by itself


c
    so far as temporary occupation is concerned and provisions of s. 23 are
    not attracted. Parts III, IV and V of the Act are connected with acquisi-
    tion covered by Part II. Part VI on the other hand deals with tempor-
                                                                                        -
    ary occupation of the land. In acquisition in exercise of the right of
    eminent domain title of the owner is extinguished and the property
    vests in the State. On the other hand, when temporary occupation is
    taken under Part VI of the Act the title remains untouched. It is the
D   possession of the property which alone is taken over. Reference may
    he made to the proviso in s. 36(2) of the Act which contemplates that
    in a case where possession alone has been taken under s. 35 but the
    land becomes permanently unfit to be used for the purposes for which
    it was used immediately before possession was taken, it is open to the
    owner of the property to require the appropriate Government to take
    steps for acquisition of the land. This itself is indicative of the position
E
    that when possessfon had been taken,under s. 35 of the Act it was not a
    case of acquisition under Part II thereof.

           We agree with the view indicated in Tan Bug Taim v. Collector of \.
    Bombay, A.LR. 1946 Born. 216. that temporary occupation of land
F   provided in Part VI is distinct from, and is not included in, acquisition
    of land. We have already pointed out that clause 'secondly' ins. 23(1) ,,..
    of the Act is not applicable to temporary occupation covered by s. 35
    of the Act. Statutory solatium as provided in s. 23(2) of the Act does
    not apply to a case of damage covered by clause 'secondly' ins. 23(1)
    itself. 'Market value' occurs in the first clause of s. 23(1) of the Act and
G
    sub-s. (2) of s. 23 refers to market value. Solatium has reference to
    market value and the mandate to pay solatium is only in respect of
    market value. Compensation under s. 35 of the Act has no reference to
    market value and the actual Joss sustained by the persons interested in      )!..
    the land is intended to be compensated. In that view of the matter, to a
    case of compensation under s. 35 of the Act the provisions of s. 23(2)
H   of the Act cannot be applied. The claimant is thus not entitled to any
                    B.B. SHAH! v. STATE OF U.P. [MISRA, J.]              471

     solatium on the compensation determined by the High Court in this          A
     case.

           The net result is that both the appeals are dismissed. Parties are
     directed to bear their own costs throughout.



     P.S.S.                                              Appeals dismissed.



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