B.J. Divan, J.
1. The appellant in this appeal is the original claimant and the respondent is the Land Acquisition Officer, Ahmedabad. Along with other lands, land of Survey No. 116/3 admeasuring I Acre 71/4 Gunthas was acquired for certain public purposes. The claimant who is the appellant before us was the assignee of the lessee's interest in the land and the lessor was the successor-in-interest of one Shri Shivrajgiriji. The lease was granted for a period of 999 years. Under the terms of the lease, and particularly by paragraph 8 it was agreed between the parties that if the land was acquired, out of the amount of compensation that may be payable, the lessor was to get the amount at the rate of Rs. 5/- per square yard and the balance of the compensation amount was to be paid to the lessee. It is not in dispute that the claimant, the appellant before us, as the assignee of the original lessee would be entitled to receive whatever compensation amount comes to his share in view of the terms of the lease deed. The Land Acquisition Officer did not grant any solatiurn and the total amount of compensation payable in respect of S. No. 116/3 was Rupees 30,015-06 ps. No solatiurn having been allowed and the value of the land for the purpose of award having been fixed at Rs. 5.25 per square yard, the claimant applied for a reference under Section 18 of the Land Acquisition Act claiming the amount of the surplus from the total compensation amount that might be left 'after the lessor was paid at the rate of Rs. 5/- per square yard for this land of S. No. 116/3. The Reference was heard by the learned judge in the City Civil Court and be came to the conclusion that the claimant was entitled only to 15 per cent solatium on the total value of the land calculated at 25 ps. per square yard for the total area of the land. He directed that the claimant should be paid Rs. 274.40 ps. with 4 per cent interest from 18th December 1958 till realisation and proportionate costs. Against this judgment and order of the learned judge in the City Civil Court, the claimant filed an appeal to this Court, being First Appeal No. 203 of 1.965. Our learned brother A. A. Dave, Y., sitting singly disposed of the First appeal on November 30, 1971. He agreed with the conclusion reached by the learned judge in the City Civil Court and dismissed the appeal. The present Letters Patent Appeal has been filed against this decision of the learned Single judge.
2. It was urged by the learned Assistant Government Pleader that the claimant was not proved to be the assignee of the lessee as the deed of assignment in favour of the claimant was not on the record. However, it is not open to us at this stage to go into this aspect of the question because, both the learned judge in the City Civil Court and A. A. Dave J., sitting singly have proceeded on the footing that the claimant was entitled to receive whatever was payable to the lessee in his capacity as the assignee of the lessee. We have declined to go into this question about the title of the claimant who claims to be the assignee of the lessee.
3. As regards the main question of apportionment of the total amount of compensation, everything turns upon the wording of the lease deed in paragraph 8. Exhibit 10/1 is the lease deed for 999 years and under paragraph 8 of that lease deed it is mentioned that out of the compensation amount that may be received in respect of the lands, the lessor would be entitled to get amount at the rate of Rs. 5 per square yard and if there is any surplus of compensation amount after the lessor is paid at the rate of Rs. 5/-, the surplus is to be paid to the lessee. it may be pointed out that before the learned Judge in the City Civil Court, there was no challenge on behalf of the claimant to the award of the Land Acquisition officer to the effect that the value to the land was Rs. 5.25 ps. per square yard. We will proceed on that footing, It is clear that the total area of I Acre 71/4 Gunthas comes to 5717.25 square yards. it is equally clear that the total value of land, admeasuring I Acre 7Y4 Gunthas at the rate of Rs. 5.25 per square yard is Rs. 30,015-06, ps. Under Section 23 of the Land Acquisition Act, 1894, matters to be considered in determining compensation are set out. Under Sub-section J) of Section 23, in determining the amount to compensation to be awarded for land acquire, ed under the Act, the Court has to take into consideration the various factors mentioned in clauses (1) to (7) of Section 23(1). Under sub-section (2), in addition to the market value of the land as provided in sub-section (1), the Court has to award in every case, a sum of 15 per cent of such market value in consideration of the compulsory nature of the acquisition. Looking to the scheme of Section 23, it is obvious that the total amount of compensation Payable in land acquisition proceedings consists of two constituents: (1) the market value of the land; and (2) 15 per cent solatium; this solatium being 15 per cent of the market value of the land. It is the aggregate of these two constituents which is paid in every case as compensation amount to the owner or owners of land which is acquired under the provisions of the Land Requisition Act. It is, therefore, clear that if 15 per cent solatium is to be included in the total amount of compensation, the total amount of compensation comes to Rupees 34,517-31 ps. Out of this amount of Rupees 34,000 and odd, which is the total compensation amount, under the terms of paragraph 8 of the lease deed, the lessor would be entitled to get Rs. 28,586-25 ps. Only that being the amount arrived at by M11ltiPlyiD9 the total area measured in square yards by Rs. 5 per square yard. It is clear on a perusal of the terms of the lease deed that the parties, namely, the lessor and the lessee had arrived at an agreement inter se that in the event of the land under lease being acquired, the lessor was to be paid out of the compensation amount that might he paid at the rate of Rs. 5 per square yard and the balance of the compensation amount was to be paid to the lessee. It cannot be said that the interest of the lessee in the compensation amount was restricted in the light of the facts of this case only to 25 ps. per square yard. His interest extended to the total amount of compensation less the amount that may be arrived at by multiplying the total area admeasured in square yards by five. It is this balance to which the claimant was entitled and deducting the amount of Rs. .28,586-25 Rs. from Rupees 34,517-31 ps.which is the total amount to solatium; the balance comes to Rs. 5,931-06 ps. It is this amount to which the claimant is entitled and in view of the clear terms of the lease deed, this amount must he paid to him and nothing else or no lesser amount can ever be paid to him. So far as the facts of this case are concerned, both the learned judge in the City Civil Court and A. A. Dave, J., have proceeded on the footing that the solatium at the rate of 15 per cent should be paid to the claimant after calculating the amount payable to him by arriving at a figure of the total area of square yards multiplied by Re. 0.25. That approach is clearly erroneous in view of the clear terms of the lease deed and what we have set out above is the only correct approach in the light of the terms of the lease deed.
4. Under these circumstances we allow this appeal and set aside the judgment and order of the learned judge in the City Civil Court as well as the judgment and order of A. A. Dave, J. We direct that the claimant should be paid the amount of Rs. 5,931-06 less such amount as he has already received and he shall be paid interest at 4 per cent per annum from 18th December 1958 on the amount of Rs. 5,931-06 ps. and interest will be calculated on the lessor amount from the date that he was paid a part of the amount as compensation. The interest will run at 4% per cent per annum form 15th August 1965. The respondent will pay the proportionate costs of the claimant all throughout.
5. Appeal allowed.