1. This appeal is direceted against the Judgment and award of the learned District Judge, Broach, awarding Rs. 190-40 as additional amount of compensation which was wrongly deducted as being the 1/3rd of the total amount of solatium of Rs. 571-20 Ps.
2. The facts giving rise to this appeal briefly stated are as under-;-
Land admeasuring 22 Gunthas of S, No. 11/1 and 39 Gunthas, and 8 visa of S. No. 11/2 belonging to the present appellants situated in the village kalam, Mahal Hanost. District Broach was acquired for the Drilling Site No. 30. The Special Land Acquisition Officer awarded compensation at the rate of Rs. 60per Guntha. Out of the total amount of compensation which included the amount of solatium at the rate of 15% the Special Land Acquisition Officer deducted 1/3rd of the total amount of compensation on account of the premium chargeable by the Government in accordance with the provisions of Section 11A of the Act. In Land Acquisition Reference Case No. 3/69 which was registered at the instance of the appellants the Court upheld the contention of the appellants that 1/3rd amount could not be deducted out of the total amount of compensation which included the amount of solatium But the Court did not uphold their contention that as they were permanent tenants of the land no deduction. at all, could be made from the amount of compensation which could be awarded to them as per Section 32 of the Act. The learned Judge. therefore, passed an, award for the amount of Rs. 190-40 np. which was wrongly deducted from the total amount of the compensation and rejected the rest of the reference. Being dissatisfied with the award of the learned District Judge. Broack the original applicants have preferred the present appeal before this Court.
3. Mr. V. J. Desai. the learned Advocate. who appeared on behalf of the appellants did not challenge the amount of compensation ascertained by the Special Land Acquisition Officer. The only contention before me is that as the applicants were the permanent tenants of the land their case would be governed by Section 27 of the Bombay Tenancy Act and their right being heritable and transferable it was not necessary for them to pay any premium to the Government if they c4iose to transfer the land and hence 1/3rd deduction made by the Special Land Acquisition Officer from the amount of compensation was not proper.
4. In order to appreciate the averments made by the learned Advocate for the appellants. it will be worth while to refer to Section 11A of th8 land Acquisition Act It states:-
'If the land in respect of which an award Is made under Section 11 is land which according to the terms of its tenure Is not transferable or portable by meters and bounds without the sanction of the State Government or any other competent officer. then out of the amount of compensation awarded therefor a stun. which would have been payable to the State Government under any law for the time being in force, had the land been otherwise transferred, shall-be payable to the State Government and the Collector shall specify in the award the sum so payable to the State Government.'
This section Is to be read with Section 73-B of the Bombay Land Revenue Code as applied to Gujarat, It states:-
'Where any occupancy. by virtue of any conditions annexed to the tenure by or under this Act. is not transferable or partible without the previous sanction of the State Government, the Collector or any other officer authorised by the State Government. such sanction shall not be, given except on payment to the State Government of such sum as the State Government may by general or special order determine.'
Thus. the effect of Section 11A of the Land Acquisition Act read with Section 73-B of the Land Revenue Code In that if the land of the new tenure type acquired the occupant or owner will not get the full amount of compensation which would be determined under Section 23 of the Act. But a sum which he would have been required to Day to the Government for obtaining sanction for transfer as stated in Section 73-B of the Land Revenue Code. will have to be deducted from the amount of compensation. It is not disputed that Government by a special resolution has determined this amount as 1/3rd of the purchase price or market value of the land for which sanction is required. The learned Judge below. therefore was right in interpreting that 1/3rd amount of the market value of the land is to be deducted from the total amount of compensation and not 1/3rd of the total amount of compensation, which included the amount of solatium. The learned Assistant Government Pleader who appeared on behalf of the State did not challenge this position of law.
5. Mr. Desai the learned Advocate for the appellant submitted that this proposition of law would be applicable to the new tenure land, but so far as the present appellants were concerned as they were the permanent tenants of the land prior to their purchase under the provisions of the Tenancy Act, the land In their possession could not be Wined as new tenure land and they would be exempted from making any payment to the Government, in case they desired to transfer their interest in the land to any outsider. Mr. Desai. urged that a permanent tenant had interest in the land which was heritable and transferable. He invited my attention to Section 27 of the Bombay Tenancy and Agricultural Lands Act referred to as the Tenancy Act Section 27 states:-
'Save as otherwise provided in Sec13on 32-F no sub-division or sub-letting ,of the land held by a tenant or assignment of any interest therein shall be valid :
Provided that nothing in this subsection shall prejudicially affect the sights of a permanent tenant'
Relying on this provision. Mr. Desai. urged that a permanent tenant had a right of sub-letting or assigning his interest in the land and therefore. when by virtue of the provisions of Section 32-G he became a deemed purchaser on payment of the amount prescribed under law to the original occupant he became the full owner thereof. Thus, the general principle regarding obtaining of sanction in case of transfer of new tenure land by the occupant would not be applicable in the case of permanent tenants who had purchased the land. In support of his submission Mr. Desai relied on Section 43 (1) (b). Section 43 (1) states:-
No land purchased by a tenant under Sections 32, 32-A, 32 I, 32-O, 32-U or sold to any person under Section 32-P or 64 shall be transferred by sale. gift, exchange, mortgage~ lease or assignment or partitioned without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine.' It also states that sanction under Sec.1be given by the Collector under any such circumstances and subject to such condition as may be Prescribed by the State Government, Sub-clause (2) any transfer or Partition of land In contravention of sub-section (1) shall be invalid- Now, important sub-clause on which reliance is placed by the learned Advocate for the appellants is 113. It states that nothing in sub-section (1) or (IA) shall apply to land purchased under Section 32. 32-F, 32-0 or 64 by a permanent tenant thereof, If prior to the purchase the permanent tenant by usage, custom. agreement or decree or order of a Court held a transferable right in the tenancy of the land. Relying on these provisions. Mr. Desai, urged that the Provisions of sub-section (1) or 1 (A) of Section 43 will not be applicable in the case of permanent tenants who had become deemed purchasers under the provisions of Section 32 of the Act. as their interest was always considered to be transferable under Section 27 of the Act. He~ there. fore. urged that the learned Judge below was wrong in deducting 1/3rd amount from the amount of compensation awarded to the appellants. In my opinion, the learned Advocate for the appellant is not right in his submission that a permanent tenant when he becomes a deemed purchaser had an absolute right of transferring his land without obtaining the sanction of the Collector. Section 27 of the Act could be applicable so long as he was a Permanent tenant of the land and would have no application when he becomes a deemed Purchaser under the Provisions of Section 32 of the Act. The only section which governed the rights and liabilities of the deemed purchaser is Section 43 (113) relied upon by the learned Advocate which exemption those ,permanent tenants who by usage. custom. agreement or decree or order of a court. held a transferable right in the tenancy of the land. It is not proved by the present appellants that by any usage, custom. agreement. or decree or order of a Court they possess a transferable right In the tenancy of the land. They merely placed reliance on Section 27 of the Act which as observed earlier could have no application after the permanent tenant became the deemed Purchaser. They would be exempted only under the provisions of sub-clause 1(B) of clause 2 of section. 43 of the Act and sub-clause (113) only exempts those Permanent tenants who by usage. custom. agreement or decree or order of a Court held a transferable right in the tenancy of the land. As the appellants had failed to prove that their case was covered by the provisions of sub-clause (113) of clause 2 of See. 43 it could not be said that the award passed by the learned Judge was wrong,
6. They learned Advocate for the appellant lastly urged that an opportunity should be given to the appellants to prove that their case was covered by sub-clause (l B) and the matter should b . a remanded to the trial Court in order to enable them to lead evidence on this point. It may be noted that no such point urging that they held a transferable right in the tenancy of the land by usage, custom, agreement or decree or order of a Court was taken either before the Special Land Acquisition Officer or the Court below. They bad taken a plea that they were Permanent tenants. They were aware of the provisions of Section 43 of the Act. I see no reason why an opportunity should be given to the appellants to lead additional evidence on this point, In the result, the appeal fails and is dismissed with costs,
7. Appeal dismissed.