B.D. Agarwal, J.
1. Land comprised in plot No. 442/1 covering the area of .48 acre (corresponding to sixteen Biswas) situate in village Shivapurwa Pargana Dehat Amanat, district Varanasi, was acquired by the State Government for extension of the office of the Nagar Mahapalika, Varanasi. The notification under Section 4(1) of the Land Acquisition Act was issued on January 6, 1965, and published in the Gazette dated May 16, 1965. This was followed by notification dated June 23, 1966. The Land Acquisition Officer gave his award dated June 20, 1970, which was modified on September 21, 1971. Possession was taken on September 21, 1971. A sum of Rs. 10,511.04 P. was awarded as compensation in this award. The respondent laid claim to Rs. 80,000/-as compensation. He did not accept theaward and applied for reference to the District Court under Section 18 of the Act. Upon reference the learned II Additional Civil Judge, Varanasi, assessed the market value at Rs. 32,000/- calculated at the rate of Rs. 2,000/- per Biswa and in addition the claimant was awarded solatium at the rate of fifteen per cent. of the market value of the land, besides interest at the rate of six per cent. per annum from the date of taking over of the possession of the land till the payment is made.
2. Aggrieved against this decision dated December 10, 1974, the Collector, Varanasi, has preferred this appeal.
3. Learned Chief Standing Counsel urged that the market value assesse for the land under acquisition is excessive. Upon consideration had to the material placed on the record we are unable to agree. The land in question is situate behind the existing building of the Nagar Mahapalika, Varanasi. There are roads both to the south and the east of this land. In the vicinity are situate the Sports Stadium Kashi Vidhyapeeth, office of Bharat Sewa Ashram Sangh and the Bazar Chandua Satti. Also there are certain industries in the neighbourhood such as the Asia Cycle Factory, Industries Office, Loco Shed besides Irrigation Colony,, Cantonment Railway Station, Central Boys and Girls Schools, Basant College and the Theosophical Society. Residential houses are also close-by. The land in question has obviously thus the potentialities of building and industry site. These are material factors legitimately taken into account by the District Court. On December 9, 1964, Smt. Satti and others executed deed of sale in favour of Smt. Kamla Devi in respect of 3 1/2 Biswas of land for consideration of Rs. 11,000/- vide Exhibit 1. The rate of the land transferred comes to merely Rs. 3,000/- per Biswa. This transaction is close in proximity concerning the point of time to the notification under Section 4(1) in the instant case, which is dated January 6, 1965. Consideration was had by the Court below, however, to the fact that the land transferred under the abovementioned deed of sale had been developed and it had boundary walls constructed around it. Inaddition it may be noted that the sale was comparatively of a small piece of land, whereas the land under acquisition is nearly sixteen Biswas. In view thereof the Court below has rightly thought it fit to assess the market value at the rate of Rs. 2,000/- per Biswa only for the land under acquisition. The exemplars referred to by the Chief Standing Counsel are dated February 14, 1964. They were not considered appropriate even by the Land Acquisition Officer as is manifest from his award and the Court below has rightly preferred the transaction dated December 9, 1964, which is close to the notification under Section 4 in comparison to those deeds of sale. We find, therefore, that the assessment of the market value does not call for interference in the present case.
4. The main contention of the learned Chief Standing Counsel in this case is that the Court below has erred in awarding solatium to the respondent-claimant. The argument advanced is that Sub-section (2) of Section 23 of the Land Acquisition Act had been deleted in its application to the State of Uttar Pradesh by the U. P. Act XXII of 1954 with effect from November 19, 1954. The provision was reintroduced with effect from July 3, 1972, by the U. P. Act XXVIII of 1972. But since the sub-section stood deleted, it is contended, at the time when the notification under Section 4(1) was issued, there could be no basis to award solatium over and above the market value. In order to appreciate this contention, it is necessary to refer to the relevant provisions of the Land Acquisition Act. Section 23 deals with the matters to beconsidered in determining compensation. Sub-section (1) of that section says that in determining the amount of compensation to be awarded for the land acquired under the Act, the Court shall take into consideration the six matters mentioned therein. The first is the market value of the land at the date of the publication of the notification under Sub-section (1) of Section 4. The others relate to damage substained on account of the acquisition. Sub-section (2) of Section 23 lays
'In addition to the market value of the land, as above provided, the Court shall in every case award a sum of fifteen per centum of such market value, inconsideration of the compulsory nature of the acquisition.'
5. Thus, the compensation amount comprises not only the market value of the land but also the solatium. Compensation and market value are distinct expressions and have been used as such in the Land Acquisition Act. The key to the meaning ' of the word 'compensation' is to be found in Section 23 and that consists of the market value of the land and the sum of fifteen per centum on such market value which is stated to be the consideration for the compulsory nature of the acquisition. Market value is only one of the components in the determination of compensation. The additional amount of fifteen per cent, forms part of the amount of compensation because under Section 23 the compensation is to consist of amounts provided in Sub-section (1) and the additional amount calculated at the rate of fifteen per cent. On the market value of the land acquired vide Union of India v. Ram Mehar AIR, 1973 SC 305 (See also Mawahedduddin v. Collector, Hyderabad AIR 1984 Andh Pra 217). Solatium, it was observed by the Division Bench in Andhra Pradesh case, is some amount or damages allowed for the injury or distress to the feelings of the owner to cover the disinclination caused to the owner due to the displacement from the land. This is a component of compensation which is intended to amend or recompensate the loss accrued to the owner or the injuries inflicted on him by the exercise of eminent domain.
6. Market value of the land as provided in Section 23(1) firstly is calculated with reference to the date of the publication of the notification under Section 4(1). But so far as the solatium in addition to the market value is concerned that comes in when the award is made. It follows, in our opinion, that if at the time when the award is formulated there is provision in the statute for the payment of solatium that has to be included despite the fact that the notification under Section 4(1) may have been published at a time when such provision did not exist. This is also the view taken by Division Benches of this Court in the following unreported decisions : --
1. First Appeal No. 335 of 1968 (Collector, Agra v. Banwari) decided by K. B. Asthana C. J. and Satish Chandra J. (as he then was) dated May 4, 1976;
2. First Appeal Nos. 176/177 of 1972 (Decided by C. S. P. Singh J. and R. M. Sahai J. dated April 16, 1976)
3. First Appeal No. 432/412 of 1968 (Decided by R. B. Misra J. (as he then was) and J. M. L. Sinha, J. dated August 24, 1976).
7. In the Collector, Varanasi v. Harballabh Narain Singh 1979 All LJ 507 the Hon'ble M. N. Shukla, J. (as he then was) followed these decisions and held that if at the time of the determination of the market value the provision for granting solatium exists the claimant is entitled to its benefit, notwithstanding the fact that the said provision did not exist at the time of the acquisition. This was also the view taken by the Division Bench consisting of Hon. A. Banerji and Hon. R. R. Rastogi, JJ. in First Appeal No. 202 of 1975 (State of U. P. v. Sarvadeshik Arya Pratinidhi Sabha) decided on March 24, 1982.
8. Learned Chief Standing Counsel placed reliance on the decision in Smt. Kasturi Devi v. Collector, Nainital, AIR 1983 All 338 which follows the earlier decision by the same Division Bench consisting of K. N. Singh and K. M. Dayal JJ in State of U. P. v. Smt. Khairunnissa Begum AIR 1983 All 320. None of these two decisions avails the appellant. The reason is that in both these cases the decision of the reference under Section 18 of the Land Acquisition Act was made when the provision of Sub-section (2) of Section 23 stood deleted. In Smt. Kasturi Devi's case (supra), the decision was given by the District Judge on May 12, 1979; in the other case it was made on March 20, 1965. In Smt. Kasturi Devi's case, the attention of the Bench was drawn to the earlier decision in First Appeal No. 202 of 1975 (State of U. P. v. Sarvadeshik Arya Pratindhi Sabha, dated March 24, 1982). This was distinguished on ground that therein the ratio of the Bench depends upon the pendency of the reference before the District Judge when the amending provision came into force on July 3, 1972,as a result of the introduction made by the U. P. Act XXVIII of 1972. It was held that this principle could not be applied to the case of Smt. Kasturi Devi as the reference had already been decided therein prior to the enforcement of the amending Act XXVIII of 1972. So far as the case before us is concerned, as mentioned above, the decision upon the reference under Section 18 was made on December 10, 1974, i.e., subsequent to Sub-section (2) of Section 23 having been reintroduced into the Act by the amendment brought by the U. P. Act XXVIII of 1972. In the light, therefore, of the decision relied on for the appellant also this case stands on a different footing and it is governed by the dictum laid in the State of U. P. v. Sarvadeshik Arya Pratinidhi Sabha (supra) besides other cases cited above.
9. The matter can be viewed from another angle also. Solatium at the rate of fifteen per cent of the market value of the land acquired is payable compulsorily in the State of U. P. When the State Government proceeds to acquire land for purposes of a scheme inpursuance of the U. P. Nagar Mahapalika Adhiniyam, 1959, or the U. P. Town Improvement Act, 1919, or for that matter under the provisions of the U. P. Avas Evam Vikas Parishad Adhiniyam, 1965. In the Nagpur Improvement Trust case, (1973) 1 SCC 500 : (AIR 1973 SC 689) the Supreme Court ruled that for purposes of award of compensation (including solatium) it is immaterial whether the acquisition is under one Acquisition Act or another Acquisition Act. If the existence of the two Acts enables the State to give one owner different treatment from another equally situated, owner who is discriminated against can claim the protection of Article 14 of the Constitution. This was affirmed by the Supreme Court in Om Prakash v. State of U. P. (1974) 1 SCC 628 : (AIR 1974 SC 1202). But differential nature of the public purpose does not furnish, it has been held, a rational ground to pay more compensation to one owner and less to another. The diversity of the purposes does not warrant payment of differential scale of the quantum of compensation. Public purpose sanctions compulsory acquisition, but not discriminatorycompensation whether you take the land of A for improvement claim (scheme?) or for irrigation claim (scheme?). To be guided by such situation would amount to be governed by something which is not relevant. The State must act equally when it takes the property unless there is an intelligent and intelligible differentia between the categories of owners having a nexus with the object, namely, the scale of compensation vide the State of Kerala v. T. M. Peter, AIR 1980 SC 1438 wherein also the principle stated in the case of Nagpur Improvement Trust (supra) and Om Prakash (supra) was reiterated. In P. C. Goswami v. Collector of Darrang, AIR 1982 SC 1214 there was requisition under the provisions of the Assam Land (Requisition and Acquisition) Act, 1948. It was contended' before the Supreme Court that in the matter of payment of solatium no discrimination could be made between acquisition under the Assam Act and acquisition made under the Land Acquisition Act. This contention was upheld referring to the case of State of Kerala v. T. M. Peter '(supra) and observing that in that case it was held that there is no justification to discriminate between an acquisition made under one Act and an acquisition made under another Act in so far as the payment of solatium is concerned. The Supreme Court added that this should be more so in respect of an acquisition to which the State Government is empowered to extend the provisions of the Land Acquisition Act. The settled principle is that the interpretation of statutory provision should so far as reasonably practicably be such as is in confirmity and accords with the constitutionality thereof rather than otherwise. In this view also we are clear in our opinion that whereas in the instant case the award by the District Court was pronounced subsequent to July 3. 1972, when the U. P. Act XXVIII of 1972, had reintroduced Sub-section (2) of Section 23 of the Land Acquisition Act, there can be no objection taken to the solatium being awarded over and above the market value of the land involved. (See also the unreported decision of the Division Bench consisting of H. N. Seth J. and N. N. Mitthal J. in First Appeal No. 30 of 1972 dated August 23. 1979.)
10. Consideration been had to the discussion made above the appeal is devoid of merits.
11. The appeal is dismissed. The respondent did not appear. Costs on parties.