ivil Appeal No2327 of 1977
From the Judgment and Order dated 235 1975 of the Allahabad High Court in First Appeal No 302 of 1966
KC Jain and HK Puri for the Appellants
APS Chauhan Roopendra Singh and AS Pundir for the Respondent
The Judgment of the Court was delivered by PUNCHHI J
This appeal by special leave is directed against the common judgment and order of the Division Bench of the Allahabad High Court dated May 23 1975
The appellant herein since deceased and represented by Legal 391 Representatives was the owner of 48613 sq yards of land in village Ghatwasan Teh
Sadar Dist
The same was acquired by the Agra Town Improvement Trust under the provisions of the UP Town Improvement Act 1919
Notification under section 362 of the aforesaid Act
which is analogous to section 4 of the Land Acquisition Act 1894 was issued on 29 7 1950 and the acquisition proceedings culminated by an award of the Land Acquisition Collector followed by taking possession of the land from the appellant on 11 3 1953
For the land acquired the appellant was paid a partly sum of Rs 1344 2 annas  6 paise as compensation
No solatium was awarded as none was awardable under the UP Town Improvement Act 1919
Feeling dissatisfied the appellant sought a reference under section 18 of the Land Acquisition Act before the Nagar Mahapalika Tribunal a creature of the UP Town Improvement Act 1919
The appellant asserted before the Tribunal that he should have been allowed a rate of Rs8 per sq yard for the acquired land
The Tribunal partly accepted the claim of the appellant by its order dated 5 11 1965 raising compensation to the rate of Rs3 per sq yard and thus held the appellant entitled to a total sum of Rs 145889 inclusive of the sum of about Rs 1344 already received by him
The Tribunal also awarded interest on the amount due at the rate of 4 12 percent per annum with effect from 11 3 1953 the date of taking possession of the land till its payment
Still dissatisfied the appellant moved the High Court of Allahabad in appeal a forum provided under the UP Town Improvement Appeals Act 1920 but on grounds analogous to section 100 CPC
Correspondingly the Nagar Mahapalika also filed a cross appeal against enhancement
The Tribunal disposed of both the appeals by a common judgment
The appellant was awarded enhanced compensation at the rate of Rs4 per sq yard
Consequently an additional sum of Rs48613 was held due to him
The High Court also changed the rate Of interest from 4 12 percent per annum to 6 percent per annum correcting the error committed by the Tribunal
The claim of the appellant to solatium at the rate of 15 per cent on the sum awarded uptill the Tribunal s level was rejected as the appellant had not claimed the same before the Tribunal and had not made a grouse thereof in his memorandum of appeal before the High Court
So on the sum of Rs 145839 assessed as market value by the Tribunal no Solatium was awarded
On the amount of Rs48613 enhanced by the High Court solatium at the rate of 15 per cent was awarded by the High Court and interest thereon was also awarded from 11 3 1953
392 the date of taking possession till its payment
The appeal of the Nagar Mahapalika was dismissed
The appellant alone who is before us has challenged the common judgment of the High Court
No dispute herein has been raised to any further increase in the market value of the land
The claim vehemently put forth is with regard to the solatium of 15 per cent on the market value of the land and which claim partly has been negatived by the High Court
It is not disputed that if the claim is valid the rate of solatium would be 15 percent of the market value
Though a faint attempt was made to raise claim to solatium at the rate of 30 per cent and interest to 9 per cent per annum in terms of the amendments made in the Land Acquisition Act 1894 by means of Act No 68 of 1984 but such claim was abandoned in the next breath
So we are thus concerned only to the claim of solatium which has been declined by the High Court
Section 232 of Land Acquisition Act as it then was provided that in addition to the market value of the land as provided in sub section 1 of section 23 the court shall in every case award a sum of rupees fifteen per centum on such market value in consideration of the compulsory nature of acquisition
Solatium as the word goes is money comfort quantified by the statute and given as a conciliatory measure for the compulsory acquisition of the land of the citizen by a welfare state such as ours
The concern for such a citizen was voiced by the Law Commission of India in its Report submitted in 1957 on the Need for Reform in the Land Acquisition by observing as follows We are not also in favour of omitting Section 232 so as to exclude solatium of 15 for the compulsory nature of the acquisition
It is not enough for a person to get the market value of the land as compensation in order to place himself in a position similar to that which he could have occupied had there been no acquisition he may have to spend a considerable further amount for putting himself in the same position as before 
As pointed out by Fitzgerald the community has no right to enrich itself by deliberately taking away the property of any of its members in such circumstances without providing adequate compensation for it
This principle has been in force in India ever since the Act of 1870
The Select Committee which examined the Bill of 1883 did not think it necessary to omit the provision but on the other hand transferred it to Section 23
 393 The importance of the award Of solatium cannot be undermined by any procedural blockades
It follows automatically the market value of the land acquired as a shadow would to a man
It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired
It follows as a matter of course without any impediment
That it falls to be awarded by the Court in every case leaves no discretion with the court in not awarding it in some cases and awarding in others
Since the award of solatium is in consideration of the compulsory nature of acquisition it is a hanging mandate for the court to award and supply the omission at any stage where the Court gets occasion to amend or rectify
This is the spirit of the provision wherever made
It is pertinent to note here that the claim of the appellant to solatium was not entertainable before the Land Acquisition Collector taking proceedings of the acquisition under the UP Town Improvement Act in the absence of a provision allowing it
Rather the amendments and modifications set out in the schedule attached to the UPTown Improvement Act made read that way
The payment of solatium as awardable under section 232 of the Land Acquisition Act was specifically not made applicable to the land acquired under the UP Town Improvement Act
Such amendment to the schedule however being violative of Article 14 of the Constitution was struck down by this Court on 14 12 1973 in Om Prakash  Another vs State of UP and Others vs State of UP and Others This Court took the view that if the government could acquire land for a Mahapalika or other local body by resort either to the Land Acquisition Act or the UP Town Improvement Act it would in the former case have to pay solatium and in the latter case not at all and which would lead to discrimination and consequently granted relief of solatium to the land owner whose land was acquired
On the law laid down by this Court the High Court rightly took the view that since the amendments made to the schedule to the Town Improvement Act had gone out of the way of the appellant the compensation due to him would have to be assessed in accordance with the provisions of section 23 of the Land Acquisition Act
Holding so the High Court awarded solatium on the amount enhanced by it and for that part rightly
The denial of the solatium to the appellant on the sum awarded by the Tribunal is based on the reasoning that firstly the Collector had not awarded solatium and the appellant while taking the matter to the Tribunal had not raised such claim
Secondly after the order of the Tribunal the appellant when taking the matter to the High Court in 394 appeal had not made a grouse and laid claim to it in his grounds of appeal
The High Court it appears was even then prepared to grant solatium to the appellant and offered the appellant to seek amendment of the grounds of appeal but the appellant declined to do so asserting that his claim to solatium was not based on any demand at his instance but was rather a statutory duty of the Court to grant it as otherwise the mandate of section 232 would fail
The High Court negatived such contention
We do not appreciate the distinction made by the High Court in this regard
The appellant had all the same not pleaded for grant of solatium in the grounds of appeal before the High Court while claiming enhanced compensation and yet the High Court felt that it was under the statutory duty to grant solatium on the amount enhanced by it
The High Court did not shut out the claim of the appellant on the ground that he had not asked for it specifically in the grounds of appeal
If that is so the legal error which was otherwise patent needed to be rectified by the High Court in favour of the appellant more so when there was a cross appeal of the Nagar Mahapalika before it and resort could be had to the provisions of Order 41 Rule 33 CPC Additionally the claim to solatium arose in this regard on the basis of Om Prakash s case supra on 14 12 1973 by which the provisions of the UP Town Improvement Act whereunder solatium was withheld were struck down and on that date the appeal of the appellant against the order of the Tribunal dated 5 11 1965 was pending before the High Court
The claim to solatiun surfaced and compulsory acquistition of the land but also on the law on the subject being declared by this Court in Om Prakash s case supra
We are thus of the view that the High Court should have measured the claim of the appellant to solatium on the sum awarded by the Tribunal with the same yardstick as to the sum awarded by it and modified in decree accordingly
We have thus no hesitation in upsetting the judgment and order of the High Court in this regard and award to the appellant solatium at the rate of 15 on the entire market value of the land which would include a sum of Rs 145839 left out by the Tribunal and the High Court
The appellant further shall be entitled to the interest at the rate of 6 per annum from 11 3 1953 the date of taking possession till the date of payment of the sum due as solatium
The appeal shall stand allowed accordingly
Before parting with the judgment we need to clarify that solatium in the scheme of section 232 of the Land Acquisition Act is part of the compensation and section 28 and 34 of the said Act pro 395 vided payment of interest on the amount of compensation
This Court recently in Periyar and Pareekanni Rubbers Ltd vs State of Kerala  has ruled that compensation is recompense or reparation to the loss caused to the owner of the land and that payment of interest on solatium is to recompensate the owner of the land the loss of user of the land from the date of taking possession till date of payment into Court
Therein the land owner was held entitled to interest on solatium
Attention however may be invited to Dr Shamlal Narula V Commissioner of Income tax Punjab  The quality of the sum paid as interest was held somewhat different
It was ruled therein that the statutory interest paid under the Act is interest paid for the delayed payment of compensation amount and in no event can that be described as compensation for owner s right to retain possession for he has no right to retain possession after possession was taken under sections 16 and 17 of the Act
The quality of the receipt of interest can be left by us here whether it be a recompense for the loss of user of land or is a sum paid for the delayed payment of compensation
Solatium being part of compensation must fetch statutory interest from the date of dispossession of the land owner till date of payment
Accordingly we allow this appeal and direct that the appellant shall also be paid solatium at the rate of 15 on the left out amount of Rs 145839 and interest at the rate of 6 per annum thereon from 11 3 1953 the date of taking possession till date of payment and that too with costs
R section section Appeal allowed


Summary:
The respondents in these appeals are diploma holder engineers employed in the various departments of the Government of West Bengal as Operator cum mechanicsElectricians etc
in the pay scale of Rs230 425
Consequent upon the amendment of West Bengal Services Revision of Pay and Allowances Rules 1970 the respondents filed writ petitions before the High Court claiming that by virtue of sub para ii of Para IV of the Notification dated 191174 they are to be termed as Sub Assistant Engineers and given the benefit of that post and scale of pay of Rs300 600 as they are diploma holders in engineers
It was asserted by them that the benefit of the said Notification had been given to similarly situated persons in the other department of the State Government but they had been subjected to discriminatory treatment by denying to them those benefits
The State Government contended before the High Court that sub para ii Para IV of the notification applied only to Overseers Estimators and Sub Overseers already working in the pay scale of Rs300 600 and not to Operator cum MechanicsElectricians etc
whose scale of pay was Rs230 425
According to the State the said Notification was intended merely to change the designation of various technicians and engineers having identical scale of pay Rs300 600 to secure uniformity of designation of those employees and since the recruitment qualification of the respondents was much less than the diploma in engineering they were not entitled to be redesignated as Sub Assistant Engineers
The learned single Judge of the High Court allowed the writ petitions holding that the case of the respondents fell within the purview of the November 1974 notification and they were entitled to be termed as Sub Assistant Engineers
The State Government preferred an appeal against the said order before the Division Bench
The Division Bench of the High Court though held that sub para ii of para IV of the Notification dated 19111974 could not be 518 construed to include the Operator cum MechanicsElectricians who were drawing the pay scale of Rs230 425 dismissed the appeals with the observation that the respondentswrit petitioners should have been admitted to the benefit of the pay scale of Rs300 600 long before others holding the same position as the writ petitioners had been granted the benefits
The State Government has now filed these appeals after obtaining special leave
Dismissing the appeals this Court HELD The reasons for amending the 1970 Rules by the Notifications dated 1131974 and 19111974 was the decision of the Government to remove the anomalies in the existing rule so as to attract men of quality and also with a view to remove frustration among those having specialised knowledge of a technical nature525C D The persons brought under the category of other diploma holder engineers  can only be the persons like the Operator Cum MechanicElectrician with diploma in engineering and working in various departments in the Engineering Service
525F Clause iv of Para IV of the Notification which states that Gazetted status is conferred on the members of the Subordinate Engineering Services and all sub Assistant Engineers also relates to these two categories that is the Overseers Sub Overseers and Estimators who are already members of the Subordinate Engineering Service and the other diploma holder engineers  now termed as Sub Assistant Engineering
525G H There is a concurrent finding that these respondents have been discriminated and the State Government had acted arbitrarily without any rational basis by conferring benefits of the Notification to 17 other employees in other departments while denying the said benefits to the said respondents in the Agriculture Department526E Chief Secretary to Government of AP vs Cornelius   State of Punjab vs Joginder Singh 1963 Supp2 SCR 169 referred to