Judgment:
Jeevan Reddy, J.
1. These four appeals are preferred by the State under S. 11 of the Requisitioning and Acquisition of Immoveable Property Act, 1952. Civil Miscellaneous Appeal No. 415/1980 arises from Arbitration Case No. 4/75 pertaining to Ac.10.21 guntas in survey No. 165 at Alwal village. Civil Misc. Appeal No. 416/1980 arises from A.c.3/75 pertaining to A.c. 8.09 guntas in survey No. 164. Civil Misc. Appeal No. 417/80 arises from A.C. 1/75 pertaining to Ac. 3.09 guntas in survey No. 162 and Civil Misc. Appeal No. 418/80 arises from A. C.2/75 pertaining to Ac. 7.17 guntas in survey No.163. All these four survey numbers are adjacent to each other. Indeed they form a contiguous block.
2. These lands concerned were requisitioned under the Act in 1966. Acquisition proceedings were commenced in 197 1. The competent authority offered to pay compensation at the rate of Rs.9.50ps. per square yard, to which however, the claimants were not agreeable. In A.C. Nos. 1, 2 and 4/7 they claimed at the rate of Rs.50/- per square yard, while the claimants in A.C.3/75 claimed at the rate of Rs.30/-. As between the owners and the protected tenants of these lands, an agreement to share the compensation in a particular proportion has been arrived at, with which of course we are not concerned here.
3. The lands concerned herein are situated in Cantonment area. When the matter was referred to the arbitrator, the claimant's Piled two sale deeds, viz., Exs. A-1 and A-2, relating to plots -situated nearby, besides Exs.A-3 and A-5. Ex.A-3 is the judgment of the civil court in O.P. 158/74 on the file of the Additional Chief Judge, City Civil Court,.. Hyderabad, pertaining to adjacent lands, Thereunder compensation was awarded at the rate of Rs.25/- per square yard. It appears, that the said acquisition was made by the State Government under the Land Acquisition Act. Ex. A-5 is the judgment of a Division Bench of this Court in Civil Misc. Appeals 408 to 412/75 dt. 8th April 1976 relating to lands situated about two to three furlongs away from these lands, where under Compensation awarded at the rate of Rs.14/- per square yard was confirmed by this Court. Certain plans were also filed by both the parties to indic4te the location and importance of the lands concerned herein.
4. The Arbitrator (a retired District Judge) took into consideration Ex.A-1 as also Ex.A- 2 and having regard to the judgment in Ex.A- 3, he determined the compensation payable or these lands at Rs.30/- per square yard. The claim for solatium was negatived. He forwarded interest at the rate of 4% per annum. 4o appeal has been preferred by the claimmts. only the State has appeared, stated above. Not even cross-objections have been filed by the claimants.
5. The learned Advodate-General appearing for the appellant-State urged the following contentions : - (1) That the determination of compensation it Rs.30/- is excessive. No reasons are given by the learned Arbitrator for not applying and adopting the principle enunciated by the Division Bench of this court in the judgment Ex.A-5. In particular, no reasons are given or not making a deduction of 25% on account of restrictions on construction in force within the cantonment area. Ex.A-1 as also Ex.A-2 pertain to small developed plots and cannot be treated as comparable to a large block of land concerned herein; and
(2) That in the absence of any appeal or cross-objections by the claimants this Court cannot and should not grant solatium as requested by the counsel for the respondents in these appeals. There are no grounds also 'for enhancing the rate of interest awarded.
6. On the other hand, Sarvasri S. Venkata Reddy, J. Raghava Rao and A. Ananda Reddy, learned counsel for the respondents sought to sustain the reasoning and conclusion of the learned Arbitrator. They further submitted that inasmuch as solatium is implicit, within the expression and concept of compensation it must flow as a matter of course. They' argued that solatium as also interest are adjuncts to compensation and have no independent existence. No appeal or cross-objections are necessary before they can be awarded in these appeals. They submitted that there are no reasons to deprive the claimants of the solatium at least at the rate of 15% of the market value.
7. we shall first take up the question relating to determination of the compensation. The first and foremost fact relevant in this behalf is the judgment (Ex.A 3) in O.P. 158/74. The plant (Exs.A-4 and A 6) disclose that the lands concerned herein are adjacent to and indeed form a contiguous block with the lands which were the subject-matter of acquisition in Ex.A-3. The date of acquisition notification is also practically the same, i.e. the year 1971. The judgment of the civil court (Ex.A-3) has been confirmed by a Bench of this court in C.C.CA. No. 62/1976, disposed of on 22nd Dec. 1983. We are of the opinion that there are no reasons for taking a different view, nor would it be advisable or desirable to fix a different compensation for these lands than the lands concerned in Ex.A 3. It is but just and proper that owners of both these blocks of land get even compensation irrespective of the fact that one block of land is acquired under Land Acquisition Act while the other is acquired under the 1952 Act. Under Ex.A-3, compensation has been awarded at the rate of Rs.25/- per square yard. Solatium at the rate of 15% has. also been awarded. In this case, the Arbitrator ha.-, awarded compensation at the rate of Rs.30/- per square yard, but has denied solatium. The result is ultimately the same, i.e., equal compensation for both. Rs.25/- per yard + 15% is less than Rs.30/- per square yard. Indeed, the one rupee and odd excess must be attributed to the fact that as per the inspection of the arbitrator, the lands were found to be even and better lands than those adjacent lands acquired under Land Acquisition Act.
8. The learned Advocate General placed substantial reliance upon the Division Bench judgment in Ex.A-5. It is necessary to deal with his contentions. Ex.A-5 pertains to Survey Nos. 1 14, 115, 116, 117, 118 and 119 of Alwal village. Ex.A-5 shows that these lands are situated at a distance of two to three furlongs from the plot concerned in Ex.A-1. The plans (Exs.A-4 and A.6) do not show the location of those survey numbers at all whereas the lands concerned herein are exactly on the opposite side of the road to Ex.A-1 plot. While Ex.A-1 is on the left side of the Highway, the lands concerned herein are on the right hand side. Because Survey Nos. 114 to 119 were at a distance of two to three furlongs from Ex.A- 1 plot, the Bench made a deduction of 25% from the price' mentioned in Ex.A-1. Evidently, there is no warrant for making similar deduction for these lands because these lands are close by Ex.A- 1 plot, separated only by the Highway. The Division Bench also made a deduction of 25% on the ground that the lands in Survey Nos. 114 to 1 19 are situated within the cantonment area and because there are restrictions upon construction of buildings in the cantonment area. It was observed that even though the said restrictions have been relaxed they have not been removed altogether. This aspect has been strongly emphasised by the learned Advocate-General. He says that inasmuch as the lands concerned herein are also situated within the cantonment area, a deduction of 25% ought to have been made in this case as well. We are not inclined to agree with this contention for more than one reason. It is not explained why the said factor was not brought to the notice of the Bench which disposed of C.C. C.A. No. 62/1976 and such a deduction not asked for. Secondly, we do not think that such a deduction is warranted in the facts of this case because even the Ex.A-1 plot, which is treated as comparable land, is also situated within the cantonment area. The disadvantage that attaches to the lands under acquisition equally attaches to the plot sold under Ex.A-1. If in spite of the said restriction the plot under Ex.A-1 was sold at the rate of Rs.42/- per square yard, there is no reason why it should not be treated as comparable to the lands concerned herein, subject of course to the usual deduction on account of roads and development. As a normal rule, this court has been deducting one-third of the land in such cases towards roads and development. If we deduct one third out of Rs.42/- the figure comes to Rs.28/-. In this case Rs.30/- has been awarded. In such a situation, it would not be just or proper to make a further deduction of 25%. We, therefore, reject the contention based upon Ex.A-5. For all these reasons, we do not think any interference is called for in the determination made by the learned arbitrator. Accordingly the same is confirmed.
9. The other question relates to the solatium. The reasoning of the counsel for the respondents on this aspect, based as it is upon a Bench decision of this Court in Mawahedduddin v. Collector, Hyderabad : AIR1984AP217 , runs as follows . - Section 8 contemplate the arbitrator awarding compensation which appears to him to be just, having regard to the circumstances of the case. The expression 'compensation' necessarily includes solatium which is indeed a consideration for the forcible deprivation of the land. It is a sum paid in consideration of the fact that an unwilling owner is made to part with his land to serve public interest. The Act does not speak of market value but of a just compensation and hence solatium is implicit and implied within the expression 'compensation'. The solatium ought to have been awarded by the learned arbitrator and his refusal to do so is unsustainable in law. Reliance is also placed upon a Full Bench decis ion. of this court in Kasireddy Appalaswamy v. Special Tahsildar, Land Acquisition Officer, Central Railway, Vijayawada, : AIR1970AP139 , which held that no court-fee need be paid on the solatium and interest asked for in the appeal. On the above basis, it is contended that even in the absence of an appeal or cross- objections, this court can award solatium. Reliance is also placed upon 0.41 R.33 C.P.C. in this behalf.
10. On the other hand, the learned Advocate-General submitted that the decision of the Bench in Mawahedduddin v. The Collector, Hyderabad (supra) has not correctly laid down the law in so far as it says that solatium is a necessary and invariable component of compensation. The learned Advocate-General relied upon certain decisions of the Supreme Court, to which we shall presently refer, and submitted that solatiurn is payable only when so provided by the statute and that apart from statute it has no existence.
11. The reasoning of the Bench decision in Mawahedduddin v. Collector, Hyderabad (supra) runs thus where a citizen is deprived of his property whether by way of acquisition or requisition, as the case may be, in exercise of the State's power of eminent-domain, the owner has to be compensated for the loss which he suffers by reason of such compulsory acquisition. True it is that there is no provision in the 1952 Act corresponding to S. 23(2) of the Land Acquisition Act. At the same time, there is also no provision excluding the payment of solarium. Solatium is included in the concept of compensation by necessary implication. Solatium is an amount in the shape of damages granted in lieu of the injury and the distress caused to the feelings of the owner. Thus solatium is a part and parcel of compensation. The Bench has referred to several decisions and text-books to come to the said conclusion. We have carefully gone through the judgment and we must say, with great respect to the learned Judges, that none of the decisions or text-books cited do lay down that as a matter of principle the concept of compensation necessarily includes solatium. None of the decisions or text-books say that even though the statute does not provide, solatium must be awarded as a matter of rule. The several decisions and texts emphasise only the aspect, that a person who is compulsorily deprived of his property to serve a public purpose must be compensated 'for all the loss incurred for the expulsion' and that the compensation to be awarded should not only include 'the actual value of such lands but all damages directly consequent on the taking thereof under the statutory powers . There can be little doubt about the above principle. Indeed, S. 23(1) of the Land Acquisition Act expressly recognizes these grounds and provides that they shall be taken into consideration in 'determining the compensation. All that the, 1952 Act requires is that a just and fair compensation should be awarded. What is fair and just is a matter of factual determination taking all relevant material into consideration including those specified in S. 23(1) of Land Acquisition Act. But there appears to be no warrant to say that just and fair compensation must necessarily (sic) acquisition in the shape of solatium. There is moreover an inherent difficulty in saying so. If it is said that solatium must be awarded in all 'cases, even if the statute does not so provide, question would immediately arise, at what rate? Whether it should be 5%, 10%, 15% or 30%. Suppose, the Parliament amends the Land Acquisition Act and deletes S. 23(2) altogether? Just as it has increased the solatium from 15% to 30%, it can also remove it. We therefore, do not think that any such broad proposition can be enunciated. Every day the State acquires Industrial and Commercial undertakings, essential commodities and many other goods and enterprises. The Acts providing for such acquisition do not provide for payment of solatium and it has been never contended that solatium ought to be paid as a matter of law in such cases too. It is only because of and L-,v virtue of sub-see. (2) of S. 23 of the Land Acquisition Act that solatium is paid for the land acquired under that Act. Apart from sub-sec. (2) of S. 23 solatium has no existence in law. Indeed, a Constitution Bench of the Supreme Court has said so in Prakash Amichand Shah v. State of Gujarat : AIR1986SC468 . It is observed:
'It cannot also be said as a rule that State which has got to supply and maintain large public services at great cost should always- pay, in addition to a reasonable compensation, some amount by way of solatium.'
This is also our respectful view. We are of the opinion that in view of this decision of 3upreme Court it is not necessary for us to refer the matter to Full Bench on the ground that we are disagreeing with an earlier shape decision of this Court.
12. We must, however, be not understood as saying that while determining compensation under the 1952 Act, the principles underlying S. 23(1) of the Land Acquisition Act need not be kept in mind. As observed by us herein before, the matters adumbrated therein are merely an elaboration of the factors, which have to enter the consideration in any event.
13. Though we have disagreed with the principle underlying the decision of the Bench in Mawahedduddin's case : AIR1984AP217 , we wish to refer to the relevance and applicability of the equality clause in Art. 14 of the Constitution which may, in some cases, lead to the same result. As pointed out by the Supreme Court in Vajravalu Mudaliar's case : [1965]1SCR614 , it is immaterial from the point of view of the owner, for what purpose his land is acquired and under which law, or by which authority. His concern is to obtain a just equivalent of the property taken from him. While this principle does not mean that just equivalent should always and necessarily include solatium, even where the acquisition is made under an Act other than the Land Acquisition Act, the Court should keep this principle in mind while determining compensation for land acquired under other enactments. It is equally true that in Prakash Amichand Shah's case : AIR1986SC468 (supra) it is held, after an elaborate discussion of the earlier decision., on the subject, that no general proposition can be enunciated saying that 'Wherever land is taken away by the Government under a separate statute, compensation should be paid under the Land Acquisition Act, 1894 only and if there is any difference between the compensation payable under the statute concerned, the acquisition under the statute would be discriminator'.
Yet. we repeat, the said principle has to be kept in mind and a just compensation determined. In this case, we are of the opinion that the compensation awarded is just and proper, even keeping in mind the compensation awarded for the adjacent lands acquired under the Land Acquisition Act, 1894. Though it is not really necessary, in the fight of the above opinion of ours, to refer to the several decisions cited, we may briefly note the more prominent among them, all of which, we must point out, have been referred to in Prakash Amichand Shah's case (supra). In Nagpur Improvement Trust v. Vithal Rao AIR 1973 SC 689, the Supreme Court struck down the provisions of Nagpur Improvement Trust Act, which while applying the provisions of the Land Acquisition Act for the purpose of acquiring lands required by the Trust, excluded the provision relating to solatium. The provision 'was struck down on the ground that it offends Art. 14. In P. C. Goswami v. Collector, Darrang : AIR1982SC1214 , a case arising under Assam Land (Requisitioning and Acquisition) Act, 1948, S. 4(3) of the Assam Act said that if a land is acquired under the said Act, the State Government shall be required to apply to such land any of the provisions of the Land Acquisition Act. 1894. Following an earlier decision in State of Kerala v. T. M. Peter : [1980]3SCR290 , the Supreme Court held that there is no justification for discriminating between an acquisition under one Act and an acquisition under another Act in so far as payment of solatium is concerned and that this principle applies with more force in respect of acquisition to which State Government is empowered to extend the provisions of the Land Acquisition Act.
14. There is yet another reason why we should not - cannot - award solatium in these matters. The award of the arbitrator has expressly negatived the claim for solatium. The claimants have chosen not to question. the same either by way of appeal or cross- objections assuming that cross-objections can be filed in an appeal under S. 11 of the Act. Having not so filed an appeal or cross- objections, the question is whether they can ask for the same in these appeals preferred by the State. The award in these cases can be equated to a decree under the Civil PC. If so, he decree in so far as it has denied solatium has been final, which finality cannot be disturbed or destroyed. now. It is true that solatium has been held to be an adjunct in he decisions rendered under the Land Acquisition Act. But that principle has no relevance here, since solatium is neither a competent nor an adjunct of compensation under the 1952 Act.
15. Reliance is placed by the learned counsel for the respondents upon a decision )f a Bench of this court in The State of Andhra Pradesh v. Venkateswara Rao (ICS6) APLJ (HC) 393), of which one of us (Jeevan Reddy, J.) was a member. That was a case arising under the Land Acquisition Act. solatium and interest was awarded in accordance with the law prevailing on the late the award was passed by the civil court, .e., prior to coming into force of the Land Acquisition Amendment Act, 1984. The appeals, however, came up for hearing after coming into force of the Amendment Act which raised the solatium from Rs.15% to Rs.30% and similarly enhanced the rate of interest. Section 30 of the Amendment Act made the said provisions expressly applicable to pending appeals, Accordingly the Bench awarded enhanced solarium and enhanced interest even where appeal was filed only by he State. We do not see any analogy between that case and these matters.
16. It was then said that O.41 R.33 C.P.C. entitled this court to grant the said relief even while dismissing the appeal of the State. Assuming that we have such a power, we are not inclined to do so because the claimants cave already obtained compensation at the same rate as the lands in Ex.A-3 as already explained by us herein before. This court would exercise its power under O. 41 R. 33, C.P.C. in cases where non-interference would result in inconsistent decree so run equal reliefs being granted to similarly placed parties. (vide Jirmala Bala Ghose v. Balichand G hose : [1965]3SCR550 ). In this decision, it was observed that though O. 41 R. 33 CPC is couched in very wide terms, the power has to be applied with discretion and to cases where Interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final, s0 as to enable the court to adjust the rights of the parties, it was observed that if the appellate court, in a given _case reaches a conclusion which is inconsistent with that of the court appealed from and -in adjusting the rights claimed by the appellant, it is found necessary to grant relief to a person who has not appealed, the said power may properly be invoked. It was observed that no unrestricted right is conferred by the rule to reopen the decree which has become final merely because the appellate court does not agree with the opinion of the court appealed from. We are also of the view that the said power cannot be lightly exercised so as to destroy the principle of finality of decrees by operation of the provisions of the Limitation Act. This power has to be weighed against the said principle and exercised with care and caution, particularly to remedy situations like the one pointed out by the Supreme Court in the said decision. We do not find any such situation arising here and We do not think that it would be just or proper to invoke the said power.
17. No separate arguments have been addressed on the question of interest. It is also not shown that the rate of interest - which is practically the same rate as was awarded under the Land Acquisition Act at the relevant time - is low or should be modified.
18. Accordingly, the appeals fail and are dismissed. But in the circumstances, there shall be no order as to costs.
19. Appeals dismissed.