# BRJJ BEHARI SARAI v. STAIB OF UTTAR PRADESH

- **Citation:** [1986] 3 S.C.R. 468
- **Court:** Supreme Court of India
- **Decided:** 1986-08-05
- **Case number:** Civil Appeal Nos. 1041 ol B 1972 and 578 of 1975
- **Bench:** E.S. Venkataramiah, Ranganath Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brjj-behari-sarai-v-staib-of-uttar-pradesh-9079
- **Pages:** 4

## Headnote

Land Acquisition Act, 1894: ss. 23 & 35-Temporary occupation
of land-Statutory so/atium on the compensation decreed-Whether
admissible.
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 s. 35 of the Land Acquisition Act. The High Court
refused to allow it.
-
Dismissing the appeals, the Court
HELD: I. The provisions of s. 23(2) of the Land Acquisition Act
E
providing for payment of statutory solatium are not attracted to a case
of compensation under s. 35 of that Act. [470HJ
2. Temporary occupation of land, provided in Part VI 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
F
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]
G
Tan Bug Taim v. Collector of Bombay, AIR 1946 Bom. 216 refer
red to.
3. Clause "secondly" in s. 23(1) of the Act is not applicable to
temporary occupation covered bys. 35 of the Act. Statutory solatium as
provided in s. 23(2) of the Act does not apply to a case of damage
covered by clause "secondly" in s. 23( 1) itself. "Market value"
occurs in the first clause of s. 23(1) of the Act and sub-s. (2) of s. 23
H
refers to market value. Solatium has reference to market value and the
468
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B.B. SAHA! v. STA1EOFU.P.
469
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mandate to pay solatium is only in respect of market value. Compensation under s. 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 compensated. [470•'-H]
A
CML APPEllATE JURISDICTION: Civil Appeal Nos. 1041 ol
B
1972 and 578 of 1975
From the Judgment and Order dated 28.3.1970 of the Allahabad
High Court in First Appeal No. 141of1958.
Manoj Swarup and Pramod Swarup for the Appellant.
Prithvi Raj and Mrs. Shobha Dikshit for the Respondent.
;..

## Text

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BRJJ BEHARI SARAI
v.
STAIB OF UTTAR PRADESH
AUGUST 5, 1986
[E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.]
Land Acquisition Act, 1894: ss. 23 & 35-Temporary occupation
of land-Statutory so/atium on the compensation decreed-Whether
admissible.
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 s. 35 of the Land Acquisition Act. The High Court
refused to allow it.
-
Dismissing the appeals, the Court
HELD: I. The provisions of s. 23(2) of the Land Acquisition Act
E
providing for payment of statutory solatium are not attracted to a case
of compensation under s. 35 of that Act. [470HJ
2. Temporary occupation of land, provided in Part VI 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
F
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]
G
Tan Bug Taim v. Collector of Bombay, AIR 1946 Bom. 216 refer
red to.
3. Clause "secondly" in s. 23(1) of the Act is not applicable to
temporary occupation covered bys. 35 of the Act. Statutory solatium as
provided in s. 23(2) of the Act does not apply to a case of damage
covered by clause "secondly" in s. 23( 1) itself. "Market value"
occurs in the first clause of s. 23(1) of the Act and sub-s. (2) of s. 23
H
refers to market value. Solatium has reference to market value and the
468
-r-
-
-
B.B. SAHA! v. STA1EOFU.P.
469
-l
mandate to pay solatium is only in respect of market value. Compensation under s. 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 compensated. [470•'-H]
A
CML APPEllATE JURISDICTION: Civil Appeal Nos. 1041 ol
B
1972 and 578 of 1975
From the Judgment and Order dated 28.3.1970 of the Allahabad
High Court in First Appeal No. 141of1958.
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
RANG ANA TH MISRA, J. Both these appeals ar~ 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 adequ-
~· acy 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
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470
SUPREME COURT REPORTS
[1986] 3 S.C.R.
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 aspeci. 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 VI of the Land Acquisition Act contains a complete code by itself
so far as temporary occupation is concerned and provisions of s. 23 are
not attracted. Parts III, 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 s. 36(2) of the Act which contemplates that
in a case where possession alone has been taken under s. 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 possessfon had been taken,under s. 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 v. Collector of \.
Bombay, A.LR. 1946 Born. 216. 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' ins. 23(1)
,,..
of the Act is not applicable to temporary occupation covered by s. 35
of the Act. Statutory solatium as provided in s. 23(2) of the Act does
not apply to a case of damage covered by clause 'secondly' ins. 23(1)
itself. 'Market value' occurs in the first clause of s. 23(1) of the Act and
sub-s. (2) of s. 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 s. 35 of the Act has no reference to
market value and the actual Joss 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 s. 35 of the Act the provisions of s. 23(2)
of the Act cannot be applied. The claimant is thus not entitled to any
-
-,
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B.B. SHAH! v. STATE OF U.P. [MISRA, J.]
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.
P.S.S.
Appeals dismissed.
A