Hindustan Zinc Ltd. Vs. Gokal and anr. - Court Judgment

Tatia, J.

1. With the consent of the parties, 'these appeals have been heard finally.

2. There is a short dispute between the parties whether the agriculturists, whose land was acquired, are entitled for solatium as per Sub-section (2) of Section 23 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act of 1894) and additional amount calculated at the rate of 12% per annum on market value of the land from the date of publication of notification under Section 4(1) till the date of award or date of taking possession of the land whichever is earlier under sub- section (1)(A) of Section 23 of the Act of 1894.

3. The facts relating to the matter are that Notifications under Section 4(1) and Section 6 of the Land Acquisition Act, 1953 (which was applicable to the Rajaslhan) were published on 8.6.1983 and 3.8.1983. Notices were also issued under Section 9 of the above Act directing the agriculturists-non-petitioners to submit their claim. The land was sought to be acquired for the purpose of Hindustan Zinc Limited.

4. During pendency of the above mentioned proceedings, it appears that negotiations were taken place and with the help and intervention of the Advocates of the agriculturists non- petitioners and public representatives, a theeling was called which was presided over by Shri Narpat Singh Chauhan who was Revenue Appellate Authority at that time. Thereafter, an agreement was drawn on 26.11.1988, though it was described as draft compromise but there is no dispute that this draft compromise was accepted as final compromise. In pursuance of the above compromise which is placed on record as Ex.A. 1, the Land Acquisition Officer passed the award but it appears that the Land Acquisition Officer did not award solatium payable under sub- section (2) of Section 23 and also did not award additional amount calculated at the rate of 12% per annum on market value of the land as per Sub-section (1) of Section 23 of the Act of 1894. Therefore, an application was submitted by the claimants before the Land Acquisition Officer stating therein that the claimants are accepting the award amount under protest and requested the Land Acquisition Officer to either pay the amount of the solatium and interest and other benefits or sent it to the Civil Court under Section 18 of the Land Acquisition Act.

5. It appears that instead of making reference under Section 18 of the Act, theLand Acquisition Officer by order dated 4.8.1989 itself decided and held that theamount which has been awarded in the award is inclusive of solatium at the rate of30% and additional amount of 12% and, therefore, claimants are not entitled for thefurther amount of 30% on account of solatium and 12% on account of additionalamount and rejected the application of the agriculturists claimants by order dated4.8.1989.

6. The agriculturists claimants, thereafter submitted S.B. Civil Writ Petition No. 180/90 Arjun & Ors. v. State (1) challenging the order dated 4.8.1989 and this Court allowed the writ petition No. 180/90 and all other 35 connected writ petitions and set aside the order dated 4.8.1989 by order dated 22.3.1990. While allowing the above writ petitions, this Court observed as under:

'However, a perusal of the compromise deed goes to show that while arriving at the different rates applicable to the different types of land, no specific mention has been made that those rates have been arrived at after taking into account the amount of solatium and interest and, therefore, it is a disputed question whether the rates arrived at by the compromise arc inclusive of the amounts of solatium and interest.'

7. Thereafter, it is observed that the above disputed question could not have been gone into by the learned Land Acquisition Officer and, in these circumstances, the matter was referred to the Civil Court. After directions from this Court in the above Writ Petition No. 180/90, the learned Land Acquisition Officer sent the matter to the Civil Court under Section 18 of the Act, upon which the learned Civil Judge (Sr. Div. Chittorgarh, after giving opportunity of hearing to the parties, by order dated 13.7.1998. held that the amount of solatium and additional amount are not included in the amount agreed upon in the agreement and, therefore, also not included in the award. Hence, the learned Civil Judge (Sr. Div.) Chittorgarh held that the agriculturists claimants are entitled for the amount of 30% solatium and additional amount at the rate of 12% per annum and, thereafter, by separate order dated 9.10.1998 determined the amount for each claimant.

8. Being aggrieved against the above order of the learned Civil Judge (Sr. Div.) Chittorgarh dated 13.7.1998, the appellant preferred these separate appeals. Since common questions of law and fact are involved in all these appeals, therefore, these appeals are, with the consent of the parties, finally heard.

9. According to the learned counsel for the appellant since this is a case of an agreement between the parties which is permissible under Sub-section (2) of Section 11 of the Act as the award has been passed in terms of the agreement, therefore, reference under Section 18 of the above Act is not maintainable in view of the bar provided under Sub-section (1) of Section 18 and also in view of the second proviso to Sub-section (2) of Section 31 of the above Act.

10. The learned counsel for the appellant further submitted that Sub-section (2) of Section 11 provides that the parties may agree in writing on the matters to be included in the award and the learned Land Acquisition Officer can pass award according to terms of such agreement then, when there is no mention of solatium and additional amount in the agreement then even the Land Acquisition Officer and the Civil Court cannot pass any order for payment of solatium and additional amount because it will be some thing beyond agreement and the appellant never agreed to include separate award for solatium and interest.

11. The learned counsel for the appellant further submitted without prejudice to above submissions that at the time of settlement all the facts were considered and, thereafter, the rate which has been mentioned in the agreement is arrived at by including solatium and interest in the rates given for different categories of land. Therefore, according to the learned counsel for the appellant, the claimants are not entitled for any additional amount of solatium and additional amount, as provided under Sub-section (1)-A of Section 23.

12. The learned counsel for the appellant further submitted that since the appellant paid the entire amount of the award which was accepted by the agriculturists, therefore, they are not entitled for invoking powers under Section 18 of the above Act.

13. The learned counsel for the respondent vehemently submitted that a bare perusal of the compromise Ex.A.1, it is clear that the language used in the agreement itself is clearly indicative of the fact that the only cost of the land was determined and agreed upon by the parties and there is no mention that this amount is inclusive of solatium, interest and additional amount. According to the learned counsel for the respondent which is not mentioned in the agreement cannot be read and the rule of constructor, of deed says that if the deed is unambiguous and clear then nothing can be added in or substracted from the deed, therefore, it cannot be said that the amount was inclusive of solatium and interest.

14. The learned counsel for the respondent furthei submitted that the payment of solatium and additional amount are the statutory liability of the appellant and the statute gives this benefit to the agriculturists, therefore, when only rate was determined then while passing the award, the learned Land Acquisition Officer was under statutory obligation to award solatium and additional amount. It is further submitted that the various judgments clearly decided that the solatium and interest are not part of the costs of the land. The learned counsel further submitted that the contention of the appellant that the amount given in the compromise is inclusive of solatium and the additional amount is factually wrong in view of the fact that even calculation does not support this.

15. I considered the rival submission of the parties.

16. The contention of the learned counsel for the appellant that since claimants have accepted the award amount, therefore, the reference is not maintainable is not sustainable in view of the fact that even in the order dated 4.8.1989 it is clearly mentioned that the claimants submitted in writing that they are accepting the award amount under protest. This fact also finds support from Annexure 3 filed in S.B. Civil Writ Petition No. 180/90. In Annexure 3 to S.B. Civil Writ Petition No. 180/90, one of the claimants submitted protest before the Land Acquisition Officer on 24.12.1988 (file of S.B. Civil Writ Petition No. 180/90 was also called and perused). Therefore, on this count, the contention of the learned counsel for the appellant cannot be accepted that the reference is not maintainable because of the acceptance of the award amount by the claimants without protest which was found to be not correct.

17. The learned counsel tor the appellant also raised objection with respect to the maintainability of the reference before the Civil Court on the basis of Section 18 of the above Act. Sub- section (1) of Section 18 of the above Act is as under:

'18(1) Any person interested who has not accepted the award may. by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to, the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.'

18. According to the learned counsel for the appellant, in this case there was an agreement between the appellant and the claimants and this agreement is not in dispute but also accepted by both the parlies, therefore, an award passed in terms of the agreement shall be deemed to be an accepted award and Section 23 very specifically provides that any person who has not accepted the award may request for referring the matter, therefore, the reference is not maintainable.

19. Here in this case, as a matter of fact, written compromise is not in dispute. The dispute is only with respect to the interpretation of the compromise and also there is objection with respect to the matters which were included while arriving at the rate given in the compromise. It is true that if there is a compromise between the parties and the award is passed exactly in terms of the agreement then the parties have no right to challenge the award but there may be some disputes like; what is the meaning of the terms and conditions of the award and what is the interpretation of the compromise then that matter will have to be decided by any forum and this can be done only by Civil Court. Assuming for the sake of argument that a compromise is entered into between the parties containing a term effect of which is in dispute, in that case, it cannot be said that the reference is not maintainable.

20. Therefore, the party can have objection with respect to the award after passing of the award and it is not necessary that simply because agreement, which was prior in time to the award, is an admitted and accepted document, therefore, the party cannot raise objection with respect to the fact that the award does not convey the true meaning of the terms and conditions of the agreement. Proviso to the Section 18 of the Act bars reference when award is accepted by the party and it nowhere provides that in case of agreement under Section 11(2) of the Act will bar reference. Therefore, it depends upon the facts of the case whether reference is maintainable under Section 18 of the Act in case when the award is passed under Sub-section(2) of Section 11 of the Act.

21. Here in this case, since this Court in S.B. Civil Writ Petition No. 180/90 directed the Land Acquisition Officer to refer the matter to the Civil Court and, in view of the fact that a serious question of interpretation of the agreement was involved, therefore, Civil Court had jurisdiction to decide the reference but it is different thing whether the claimants are entitled for the solatium and additional amount.

22. Since there are clear evidence available on record that the claimants received the payment under protest, therefore, also the claimants have not incurred any disability in making application under Section 18 of the Act of 1894, Therefore, in the facts and circumstances of the case, it is held that the reference under Section 18 of the Act was maintainable.

23. The next contention of the learned counsel for the appellant whether the above amount agreed between the parties in compromise dated 26.11.1988, particularly given in para Nos. 1 to 3, are inclusive of solatium and the additional amount, I may consider the language employed in the compromise; Paras No. 1 to 3 of the compromise are as under:

^^1- fprkSM+x<+ HkhyokM+k jksM+ ls yxh gqbZvokfIr esa vkus okyh Hkwfe ftlds dwy 7 uEcj gSaa tks djhc 26&27 ch?kk dsgksrh gS A ;g lHkh] vkjkth;kr jsdMZ esa flafpr mke ntZ gS o cgqr gh de jdckchM+ o okMk ;kfu vU; fdLesa gSa A bu uEcjku dh dher 40000 izfr ch?kk lseqvkotk jkf'k r; dh tkrh gS A

2- vokfIr Hkwfe esa nhxj fdLeska dh Hkwfe dhjsV fuEu izdkj r; dh tkrh gS %&

vpkgh izFke 36]000 izfr ch?kkcpkgh f}rh;27]000 izfr ch?kklpkgh r`rh;18]000 izfr ch?kkntk- izFke I18]000 izfr ch?kk;tk- f}rh; II18]000 izfr ch?kk jtk- r`rh; III18]000 izfr ch?kkyckjkuh izFke] f}rh;12]000 : izfr ch?kkochM catj vkfn10]000 : izfr ch?kk3- fdlh vflafpr Hkwfe ij fiNys rhu o'kZesa vxj nks Qlysa gks jgh gS tks fd ftalokjh esa ntZ gksxh] mldh jsV 18]000 :izfr ch?kk r; dh tkrh gS A

24. A bare perusal of agreement shows that there is no specific mention of fact that solatium and the additional amount are included in the above amount. The language as used in para Nos. 1 to 3 of the agreement, as quoted above, clearly shows that the rate was fixed per bigha and, in particular para No.2, it is clearly mentioned that ^^Hkwfe dh jsV fuEu izdkj r; dh tkrh gS** Theword ^^Hkwfe dh jsV** certainly means the cost of the land. The additional amount and solatium are not part of the cost of the land. The Hpn'ble Apex Court in the judgment delivered in : Union of India v. Ram Mehar and Ors. (2), while deciding whether the solatium and the additional amount are the part of the market value of the land or not, held as under:

'But compensation and market value are distinct expressions and have been used as such in the Acquisition Act. It is not possible for anyone to contend That solatium falls within the expression 'land' within the meaning of Section 3(a) of the Principal Act. Since under Section 4(3) of the Amending Act it is only the market value of the land on which interest has to be paid solatium cannot form part of the market value of the land.'

and, ultimately held as under:

'For the reasons given above we are unable to accept the view of the High Court that market value in Section 4(3) of the Amending Act means the same thing as compensation and including the amount of 15% payable under Section 23(2) on the market value of the land.'

25. Therefore, by plain reading of the agreement, it appears that it was the rate of cost of the land which was agreed between the parties and not the cost including the solatium and additional amount.

26. The learned counsel for the appellant tried to submit that before arriving atthe figure, the amount of interest and the solatium was also calculated and, thereafter,this rate was determined. The learned counsel for the appellant vehemently submittedthat the appellant submitted even before the Land Acquisition Officer, the calculationto show how this amount came which is given in para No. 2 of the compromise dated26.11.1988. The calculation given is also relevant and important for decision, therefore,it may be quoted here, which reads as under:

fdLe tehu

ewY; t osY;w ekdsZV

lksysf'k;u lu~ 83 ls 30izfr- 88 rd 12 izfr C;kt

dqy jkf'k

le>kSrkvf/kdkjh }kjk fuxZr jkf'kpkgh izFke

16000

4800

13043-40

33843-40

36000:-

pkgh f}rh;

12000

3600

9782-55

25382-55

27000:-

pkgh r`-

8000:-

2400

6521-70

16921-70

18000:-

tk izFke I

8000

2400

6521-70

16921-70

18000:-

tk IIII

8000

2400

6521-70

16921-70

18000:-

tko IIIIII

7000

2100

5706-50

14806-05

18000:-

ckjkuh I-II

5000

1500

4076-05

10576-50

12000:-

chM+ catM+

3000

900

2445-65

6345-65

10000:-

27. According to the learned counsel for the appellant even Shri Narpat Singh Chauhan, who was the Revenue Appellate Authority and was the Chairman of the meeting in which the compromise dated 26.11.1988, gave statement on oath, as NAW 3 before the Civil Court along with two other witnesses, namely, NAW 1 Mohan Singh and NAW 2 Chiman Singh and stated that the amount was arrived at after calculating the cost of the land plus 30% solatium and 12% additional amount as interest above the market value of the land and, thereafter, payment was determined by making it in round figure According to the learned counsel for the appellant, these are the trustworthy witnesses and there is no reason to discard their statements.

28. A bare perusal of the calculation given by the learned counsel for the appellant, as quoted above, if examined, then it comes out that the above calculation cannot be accepted as shown by the witnesses as the amount calculated raises serious doubts, e.g., the amount in the last category of 'Beed' and 'Banjar', the market value is given Rs. 3000/-, the solatium Rs. 900/-, interest Rs. 2445.65/-, total amount comes only Rs. 6345.65, whereas to make it in round figure, instead of making Rs, 6400/- or Rs. 6500/-, if has been made to Rs. 10,000/-. For category 'Jav-Trtiya-III' the cost of the land given is Rs, 7000/-, solatium Rs. 2100/-, interest 5706.05, the total amount comes to Rs. 14806.05 but the round figure amount is given Rs. 18,000/-. Why this Rs. 14806.05 was increased to Rs. 18,000/- is not made clear and, not only this, but the rate of 'Jav-Pratham-I'., cost of the land of this category has been shown as Rs. 8000/-, solatium Rs. 2400/-, interest Rs. 6521.70, total Rs, 16921.70 but it is also made in round figure to Rs. 18,000/-. By this way, the compensation of the land for which value was determined as Rs. 14,806.05 has been shown to be Rs. 18,000/- on the ground that it is in round figure which itself cannot be accepted and the value of the land of Rs. 16,921.70 has also been shown in round figure as Rs. 18,000/-. Therefore, the calculation appears to be prepared to justify the contention of the appellant only and the determination of the amount of rate of land given in compromise dated 26.11.1988 has no relation with the calculation given in above.

29. Even if it was the process adopted by the appellant then there is no evidence in support of this that the calculation was made known to the claimants and they agreed for it. The document signed by the representatives of the claimants and the representative of the appellant is the only agreement Ex.A.1 which does not contain this calculation. When the calculation itself does not repose confidence then by mere oral statements of the witnesses cannot be accepted which are lacking in material particulars to justify the calculation. The learned counsel for the appellant tried to justify that this amount is inclusive of solatium and interest and submitted that in subsequent agreement with other cultivator for other land between the cultivators, the appellant specifically mentioned the fact relating to the solatium and interest. This document was not placed before the Land Acquisition Officer or before the Civil Court nor before this Court by moving proper application, therefore, the same cannot be considered and if, in that document there is a mention of solatium and interest separately then also it has no bearing for the purpose of deciding this matter.

30. I also perused the statements of the other witnesses-Champa Lal and Daulat Ali produced by the claimants agriculturists also. Both the witnesses are Advocates by profession and stated before the Civil Court that in agreement dated 26.11.1988 the solatium and interest are not included in view of the fact that they were leviable statutorily and the rate given in the compromise is not inclusive of solatium and interest. As observed above, when the facts with respect to a deed are clear and there is no mention of the inclusion of solatium and interest or additional amount then even if antecedents circumstances for the purpose of arriving at compromise are looked then the contention submitted by the appellant does not stand nearer to the truth whereas the contention submitted by the learned counsel for the respondent appears to be quite true, therefore, it is held that the amount given in the compromise and consequently given in the award are not inclusive of the solatium and interest/additional amount as suggested by the appellant but it can be presumed that what was just compensation, the claimants were aware and conscious while agreeing for the rate given in the agreement and therefore they never asked for any additional amount.

31. Now next comes to the question, whether the claimants are still entitled for the solatium and interest/additional amount under the provisions of law for which the learned counsel for the appellant has raised two fold objections; one is that when the solatium and interest are not included in the compromise then the claimants are not entitled for the above amount and, secondly, in case of compromise as per Sub-section 2. of Section 11 when the parties never agreed for giving solatium and interest or additional amount in writing then the claimants are not entitled for the above amount. For this, Sub-section 2. of Section 11 of the Act of 1894 is relevant which reads as under:

'112. Notwithstanding anything contained in Sub-section 1., if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.'

32. A bare look to Sub-section 2. of Section 11 of the Act of 1894, it is clear that it starts with specific language 'Notwithstanding anything contained in Sub-section 1.', which clearly indicates that even when there is statutory provision for enquiry and award after enquiry as per Sub-section (1) of Section 11, the parties may enter into agreement and they may decide what matters are to be included in the award and once the parties decided what matters are to be included in the award then the learned Land Acquisition Officer is required to make award according to the terms of such agreement. Therefore as per Sub-section (2) of Section 11, it is for the parties to decide the matters which are to be included in the award. Here in this case, a bare perusal of the agreement it is nowhere agreed between the parties that the claimants agriculturists will be entitled for the solatium and interest or any additional amount. Therefore, when the claimants and the appellant have not included the amount of solatium and interest/additional amount in their compromise then, as per the clear language of Sub-section (2) of Section 11, the learned Land Acquisition Officer could have only passed the award in terms of agreement only and had no jurisdiction to award solatium and interest.

33. Again we may see the agreement between the parties dated 26.11.1988. In this, addition to the determination of compensation, other items are also included, some of which are Clausess 4, 5 and 6 of the agreement, which read as under:

^^4- D;ksafd cqvkbZ dk le; gS o dbZ dk'rdkj usjsyuk dj nh gS o cqvkobZ Hkh dj nh gS] bl ckr dk fgUnqLrku ftad }kjk Hkjld iz;klfd;k tk;sxk fd orZeku Qly lacaf/kr dk'rdkj idus ij izkIr dj ysos] vxj vokfIr dhotg ls dksbZ ekSds ij fgUnqLrku ftad }kjk dk;Z djus ls Qly u'V gks x;h rksmldk vyx ls eqvkotk fn;k tkosxk A eqvkots esa dksbZ fookn gksxk rks Jh ujirflagth r; djsxh og nksuks i{kksa dks ekU; gksxk A

5- pwafd vke le>kSrk gksus tk jgk gS] blfy;sdksbZ Hkh i{kdkj u;s rkSj ij jsyuh o cqokbZ ugha djaxs A vxj djsaxs rks mldkeqvkotk izkIr ugaha dj ldsaxs A

6- ftu 'kdksa dh Hkwfe vokIr dh tk jghagS] ml 'kd ds izR;sd ifjokj esa ls ,d lnL; vFkok mlds okjhl dks ;ksX;rkuqlkjfgUnwLrku ftad }kjk vius izfr'Bku esa fu;qfDr nh tkosxh A**

34. These conditions obviously agreed upon by both the parties in view of the fad that Sub-section (2) of Section 11 permits the parties to decide what matters be included in the award and, therefore, the inclusion or above conditions also is indicative of the fact that the claimants were also aware and conscious that they may get benefit from the appellant which they might not receive in case the award is passed otherwise than under the provisions of Sub-section (2) of Section 11 of the Act of 1894 and, knowingly, the above amount of solatium and interest/additional amount was not included in the agreement.

35. So far as the contention of the learned counsel for the respondent that the liability to make payment of solatium and the additional amount above the market value is a liability under Section 23 of the Act of 1894 is concerned, it will be useful to quote section 23 which is as under:

'23. Matters to be considered in determining compensation.

(1). In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into-

First, the market-value of the land at the date of the publication of the notification under Section 4, Sub-section (1);

Secondly, the damages sustained by the person interested, by reason of the taking of the standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;

Thirdly, the damages (if any), sustained by the person, interested, at the time of the Collector's taking possession of the land, by reason of serving such land from his other land;

Fourthly, the damages (if any), sustained by the person, interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;

Fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable (if any) incidental to such change; and

Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land.

(1-A) In addition to the market value of the land, as above provided the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the Notification under Section 4, Sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier:

Explanation- In computing the period referred to in this sub-section any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.

(2) In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market-value, in consideration of the compulsory nature of the ac-quisition.

36. Section 23 deals with the matters to be considered in determining compensation and Sub-section (1) of Section 23 provides that in determining the amount of compensation to be awarded the Court shall take into consideration the factors given in six clauses and, thereafter, the Court is required to award additional amount at the rate of 12% per annum on such market- value. Sub-section (1-A) of Section 23 clearly provides that this additional amount is to be paid on such amount, means, which was determined as per the provisions of Sub-section (1) of Section 23. Here in this case, there is no determination under Sub-section (1) of Section 23 by the Land Acquisition Officer or the Court but the amount in compromise is an agreed amount between the parties. There is no reason to hold that, while arriving at settlement, the claimants were not conscious of their total compensation amount and agreed to accept the amount under impression that the amount, which is paid in case when it is determined as per Sub-section (1) of Section 23, will also be awarded to the agriculturists. The very basis for award of additional amount as per Sub-section (1-A) of Section 23 has not been determined and there is no 'such market-value' available for award of additional amount.

37. In the same way, Sub-section (2) of Section 23 also provides in additional payment of 30% to market-value of the land. The words 'as above provided', used in Sub-section (2) of Section 23 of the above Act is also indicative of award of solatium only when the market-value is determined under Section 23 of the Act.

38. Section 23 also starts with the language that in determining the amount of compensation to be awarded, the Court shall take into consideration the factors mentioned in Sub-section (1) but, here in this case, no opportunity was available to the learned Land Acquisition Officer or to the Court to determine the compensation, therefore, when there is no determination of compensation by the learned Land Acquisition Officer and the Court, then there arises no question of awarding any amount in excess to the amount agreed between the parties which will go contrary to Sub-section (2) of Section 11 which provides and dictates that the Land Acquisition Officer shall make an award according to terms of such agreement. Sub-section (2) of Section 11 not only provides, as discussed above, but it specifically provides that when there is agreement between the parties then the Collector (the Land Acquisition Officer) without making further enquiry shall made an award.

39. Therefore, it is held that in a case of award as per Sub-section (2) of Section 11, the parties are governed by the matters included in the agreement and award can be passed for the matters included in the agreement and there is no determination of the market-value in such case under Section 23, therefore, Section 23 has no application.

40. Therefore, the award of the solatium and the additional amount awarded by the learned trial court is contrary to law and is liable to be set aside.

41. The learned counsel for the appellant, in addition to above further submitted, as per the law laid down by the Hon'ble Apex Court in : State of Gujarat vs. Daya Shamji Bhai (3), which was also considered by the Hon'ble Apex Court in : Ishwarlal Premchand Shah and Ors. etc. v. State of Gujarat and Ors. (4), when terms of the agreement nowhere provides for payment of interest, solatium and additional amount then the claimants agriculturists are not entitled for the above sum, whereas, the learned counsel for the respondent submitted that the judgment of the Hon'ble Apex Court delivered in : State of Punjab v. Mohinder Singh and Anr. (5), and the judgment of this Court delivered in Union of India v. Smt. Sulochna Devi and Ors. (6), and also relied upon the judgment of the Bombay High Court delivered in : Nagesh Waman Patil and Ors. v. Special Land Acquisition Officer, Bombay (7).

42. The learned counsel for the respondent tried to distinguish the judgments cited by the learned counsel for the appellants reported in the cases of Ishwarlal Premchand Shah v. State of Gujarat (supra) and The State of Gujarat v. Daya Shamaji Bhai (supra), on the ground that in these two judgments the facts show that the amount of interest and solatium was specifically included in the amount determined as held by the Hon'ble Apex Court. Therefore, Hon'ble the Apex Court held that the claimant was not entitled for the solatium and interest etc. and in the case of Ishwarlal Premchand Shah (supra) this fact was specifically mentioned by the Hon'ble Apex Court.

43. In this case itself, i.e. Ishwarlal Premchand Shah (supra), the Hon'ble Apex Court, while relying upon earlier judgment of The State of Gujarat vs. Daya Shamaji Bhai (supra), held that the same ratio, as given in the above case, is applicable to the present case also and in the case of State of Gujarat vs. Daya Shamaji Bhai (supra), it was held that the award need not contain payment of interest, solatium and additional amount unless it is also part of the contract between the parties and the Hon'ble Apex Court held that the claimants are not entitled for the additional amounts and interest.

44. The judgment cited by the learned counsel for the appellant in the case of Union of India v. Ram Mehar and Ors. (supra) only shows that the solatium is not the part of the cost of the land or market-value of the land. The judgment of Union of India v. Sulochana Devi and Ors. (supra), also, only provides that the claimants are entitled for solatium and interest as per Section 23 but in those cases the question under Sub-section (2) of Section 11 was not involved, whereas in the cases of State of Gujarat v. Daya Shamaji Bhai (supra) and Ishwarlal Premchand Shah and Ors. v. State of Gujarat (supra), the award of interest and solatium in the matter of award under Section 11(2) and Sub-section (1-A) of Section 23 was specifically the point in controversy and when Hon'ble the Apex Court has decided that in case the solatium, interest and additional amount are not included in the agreement then the Land Acquisition Officer is not required to award above amount and claimants are not entitled for that.

45. In view of the above discussion, all the appeals are allowed. The order of the learned Civil Judge, Chittorgarh is set aside and it is held that the claimants are not entitled for solatium and the additional amount of 12% per annum as awarded by the learned Civil Judge (Senior Division), Chittorgarh.