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TMI Blog1980 (12) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... them compensation at the rate of ₹ 20,0001per acre equal to ₹ 500/- per guntha. 2. In order to pin-point the controversial question involved in these appeals and the cross-objections, it is necessary to note a view relevant facts. In first appeals No. 301 of 01 of 1975 with cross appeal No. 890 of 1975 which arise out of the order of the trial Court in land reference case No. 4 of 1974, the lands under acquisitions are S. Nos. 88 admeasuring 1 acre 17 gunthas and 89, admeasuring 0 acre 32 gunthas of village Kasak of Broach taluka of Broach district. These lands were situated on the outskirt of the Broach town and were within the limits of the Broach Municipality at the time of acquisition. In first appeal No ' 568 of 1975 which arises out of the order of the trial Court in land reference case No. 6 of 1974 the concerned land is S. No. 86/2 admeasuring 0 acres 92 gunthas that is 2 acres 12 gunthas. The said land also was of village Kasak and was adjoining the lands with which the other land reference case was concerned. All these concerned lands which were the subject matter of the aforesaid two references before the trial Court, were sought to be acquired by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sherkhan ex. 20 in his examination-in-chief stated that the proceedings for determination of value under the Tenancy Act were held and prices were fixed for purchase of these lands. The price of S. No. 88 was determined at ₹ 2200/-. That amount has been paid out of the compensation for acquisition of the said landand hence sale certificate for that land was issued to him as per ex, 18. Similarly S. No. 89 was also purchased by him as a deemed purchaser. The price of the said land was determined at ₹ 1290/-. That amount was also paid to the owners of the land. A sale certificate was issued as Der ex. 19. Relying on these sale certificates exs. 18 and 19 for the concerned lands as issued by the tenancy authorities under S. 32-M of the Tenancy Act. Mr. Vin submitted that there was no occasion for the learned trial Judge to once again deduct these amounts of ₹ 2200/- and ₹ 1290/- from the additional compensation which the granted to the claimant for being paid .to the ex-landlords. They could not have been paid twice over. Mr. Vin subimitted that the landlords were never demanding these amounts once again and were not contesting on this aspect. Under these circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes and bounds without the sanction of the State Government or any competent officer, the market value of similar land held without restriction. It was held by the learned Single Judge in the aforesaid decision that having so, one-third premium can be deducted as payable to the State Government on account of the land being held on new tenure. But so far as the solatium was concerned, it was payable under sub-s. (2) of S. 23 and it was payable to the Government on the 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 land or person having interest in the land and it will not have no connection what so ever with the Government who by virtue of the restrictive nature of the tenure, has the right to charge for permitting transferor 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 compensatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lands which are held by a claimant under the restrictive tenure or which are purchased by the claimant as a statutory purchaser under the provisions of the Tenancy Act, one-third amount of compensation as payable to such a claimant on account of land acquisition proceedings, has to be deducted and only two-third of the compensation can be paid to the concerned claimant. This aspect of the matter is now well settle . We may only refer in this connection to two Division Bench judgments of this court. In Spl. Land Acquisition officer, Baroda v. Shushilaben Chhaganlal Thakkar, (1972) 13, Gui. L. R. 688: (AIR 1972 Gui. 189), M, P. Thakkar, J. speaking for the Division Bench observed (at P. 190):- Popularly lands held by erstwhile tenants under the deemed purchase provision of the Tenancy Act are known to be held on the new tenure. So far as the new tenure is concerned, theLegislature has engrafted a restriction in the matter of transfer under S. 43(1) of the Tenancy Act. It takes away something from the bundle of rights of ownership in the matter of alienation , In regard to the owner of land held on old tenure, the restriction envisaged by S. 43(1) would not be applicable. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Land Acquestion officer , Ahmedabad , (1976) 17 GLR 15: (AIR 1976 Guj 142 ), the divan ,C. J. and T . U. Mehta, J, J. ) took the view that the amount of slatium awarded under S. 23(2) formed part and parcel of the compensation payable in acquistion proceedings , Divan ,C . J. speaking for the Division bench , observed : -(at. P 144) Looking to the scheme of see. 23 of the Land Acquisition Act, it is obvious that the total amount of compensation payable in land acquisition proceedings consists of two constituents (1) the market value of the land and (2) 15 per cent solatium; this solatium being 15 per cent of the market value of the land, It is the aggregate of these two constituents which is paid in every case as compensation amount to the owner or owners of land which is acquired under the provisions of the Land Acquisition Act . The same view is also taken in an earlier judgment of this court in Patel Maganbhai Chaturbhai v. Collector, Mehsana District, AIR 1968 Guj 1. In the aforesaid decision, the Division Bench consisting of N. G. Shelat and A. S. Sarela, JJ. (speaking through Shelat, J.), took the view that solatium was part and parcel of compensation and interest un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, the learned Single Judge came to a conclusion which runs quite corntrm7 to the decisions of the aforesaid two Division Bench judgments of this court and the Full bench judgment of this Bombay High Court the conclusion is inevitable that the amount of compensation as mentioned in S. 11A will cover not only the amount of comepensation awarded for the acquired land u/s . 23(1) but also 15% solatium as granted u/s . 23(2) which will form part and parcel of the amount of compensation awarded therefore , meaning for land under acquistion .Under these circumstances , it appears clear to us computed by evaluating the land under acqustion , without considering the restricted nature of teneure on account of Cl , 7thly as inserted in S. 23(1) and after the entire compensation as awardable can be worked out and it is from that total compensation that S. 11A carves out a portion as specified by the collector for being deducted on account of the restricted nature of the tenure of the land which came to be acquired thus, Sec . 11A comes into operation after the total compensation is computed u/s 23(1) as well as S. 23(2) and the final figure is do arrived at the question of slicing down ..... 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