ivil Appeal Nos 1041 of 1972 and 578 of 1975 From the Judgment and order dated 2831970 of the Allahabad High Court in First Appeal No141 of 1958
Manoj Swarup and Pramod Swarup for the Appellant
Prithvi Raj and Mrs Shobha Dikshit for the respondent
The Judgment of the Court was delivered by RANGANATH MISRA J
Both these appeals are by certificate from the High Court of Allahabad and are directed against its modifying 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 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 adequacy of the compensation the matter was referred to the Court for decision
Against the decision of the Court enhancing the compensation 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 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 470 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 aspect
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 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 Vl of the Land Acquisition Act contains a complete code by itself so far as temporary occupation is concerned and provisions of section 23 are not attracted
Parts 111 IV and V of the Act are connected with acquisition covered by Part II
Part VI on the other hand deals with temporary 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 possession of the property which alone is taken over
Reference may he made to the proviso in section 362 of the Act which contemplates that in a case where possession alone has been taken under section 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 that when possession had been taken under section 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 vs Collector of Bombay AIR 1946 Bom
that temporary occupation of land provided in Part VI is distinct from and is not included in acquisition of land
We have already pointed out that clause secondly  in section 231 of the Act is not applicable to temporary occupation covered by section 35 of the Act
Statutory solatium as provided in section 232 of the Act does not apply to a case of damage covered by clause secondly  in section 231 itself Market value  occurs in the first clause of section 231 of the Act and sub section
2 of section 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 section 35 of the Act has no reference to market value and the actual loss 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 section 35 of the Act the provisions of section 232 of the Act cannot be applied
The claimant is thus not entitled to any 471 solatium on the compensation determined by the High Court in this case The net result is that both the appeals are dismissed
Parties are directed to bear their own costs throughout


Summary:
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 proceeding under s35 of the land Acquisition Act
The High Court refused to allow it
Dismissing the appeals the Court  HELD 1
The provisions of section 232 of the Land Acquisition Act providing for payment of statutory solatium are not attracted to a case of compensation under section 35 of that Act
470H 2
Temporary occupation of land provided in Part Vl 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 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 vs Collector of Bombay AIR 1946 Bom
216 referred to
Clause secondly in section 231 of the Act is not applicable to temporary occupation covered by section 35 of the Act
Statutory solatium as provided in section 232 of the Act does not apply to a case of damage covered by clause secondly in section 231 itself
Market value occurs in the first clause of section 23l of the Act and sub section
2 of section 23 refers to market value
Solatium has reference to market value and the 469 mandate to pay solatium is only in respect of market value
compensation under section 35 of the Act has no reference to market value and the actual loss sustained by the persons interested in the land only is intended to be compensated470F H