JUDGMENT P.N. Bakshi, J.
1. The Nagar Mahapalika, Agra acquired certain land for North Vijay Nagar Development Scheme. A Notification was issued under Section 36 (2) of the Town Improvement Act and published in the U. P. Gazette on 29-7-1950. Notification under Section 42 (1) of this Act was published in the U. P. Gazette dated 24-11-1951. The plot in dispute bears Khasra No. 1810 situate in village Ghatwasan, Tahsil Agra. District Agra. Its area is one bigha which is equal to 2756 square yards. The Land Acquisition Officer awarded compensation of Rs. 9/8/- to Smt. Kalawati. Objections were filed by Smt. Kalawati claiming this compensation to be most inadequate. The claim by the obiector was Rs. 5/- per square yard The Collector then made a reference under the Land Acquisition Act. The Nagar Mahapalika Tribunal, Agra has decreed the claim of the obiector for Rs. 11,014/7/- with interest at 6% per annum from the date of the possession till the date of payment of compensation money vide its iudgment dated 26-3-1965.
2. Aggrieved thereby, this first appeal has been filed on behalf of the Narar Mahapalika Agra.
3. The main ground which has been argued on behalf of the appellant's counsel is that the Tribunal has erred in law in taking into consideration the potential value of the land in question and that under the provisions of the Town Improvement Act, the use of the land as on the date of the Notification was the sole consideration for the assessment of compensation. In support of this contention, I have been referred to Section 10 of the Schedule attached to U. P Town Improvement Act VIII of 1919 and also to Sub-section (3) of Section 10 which runs as follows:--
(3) At the end of Section 23 of the said Act the following shall be deemed to be added namely:--
(a) the market value of the land shall be the market value according to the use to which the land was put at the date with reference to which the market value is to be determined under the clause.
3-A. Counsel for the appellant has also placed reliance upon a Full Bench case reported in (AIR 1928 All 147) (FB) Secretary of State v. MakhanDas in which it was held that the market value in assessing the compensation under the Town Improvement Act should be decided only with reference to the use to which the land has been put. Reference has also been made to a decision reported in AIR 1946 PC 132, Babu Kailash Chandra Jain v. Secretary of State. On this basis, counsel for the appellant submits that the impugned order suffers from illegality.
4. Learned counsel for the respondent on the other hand has brought to my notice a decision of the Division Bench of this Court in First Appeal No. 139 of 1964. Sita Ram v. Agra Nagar Mahapalika, Agra connected with First Appeal No. 140 of 1964, Lala Narain Das Jain v. Agra Mahapalika which was decided on 16-4-1975. The point which has been canvassed by the appellants' counsel as narrated above has been dealt with in detail in this Division Bench case. It has been held therein that the potential value of the land was to be taken into consideration in determining the compensation payable under the Town Improvement Act. Schedule Section 10 of the Town Improvement Act has been declared ultra vires by a Division Bench of this Court reported in 1973 All LJ 656 = (AIR 1973 All 647), Prabhu Lal v. Special Land Acquisition Officer. It is not necessary for me to repeat the details given in these cases cited above. Suffice it to say that the Division Bench case of this Court which has set the controversy at rest, is binding upon me. I find no reason to disagree with this Division Bench case.
5. Learned counsel appearing on behalf of the appellant has brought to my notice the decision of the Supreme Court reported in (AIR 1975 SC 394) Sarwan Singh v. The State of Punjab and on its basis he submits that the decision of the Division Bench case as referred to above is erroneous and that the use to which the land was put on the date of the Notification alone should be a determining factor for the assessment of compensation. I am afraid it is not possible for me to agree with this submission. The Supreme Court case relied upon by the learned counsel and cited before the Division Bench has been rightly distinguished in that case. The Supreme Court has not said anything about the invalidity of the provision relating to the fixation of principles of compensation. In my view, therefore, the Supreme Court case can be of little assistance to the appellant's counsel.
6. In the result, therefore, I am of the opinion that potential value of the land has to be taken into consideration in assessing the amount of compensation payable to the objector even though the case may arise for acquisition under the Town Improvement Act.
7. On the merits no substantial argument has been advanced before me. The Land Acquisition Officer has granted a compensation of Rs. 9/9/- for one Bigha of land which is equivalent to 2756 Sq. yards. To the naked eye this compensation is wholly preposterous. nO court of law can uphold such an imaginative and illusory compensation for which there 'is no justification at all. The Nagar Mahapalika Tribunal took into consideration the oral evidence which has been led by the parties as also the examples by way of sale deeds which were filed before him. I have perused this evidence myself. The rate of compensation awarded in the impugned order is Rs. 4/- per sq. yard. After taking into consideration the statements of the witnesses examined by the claimant and also the examples which have been referred in the impugned order, I am of opinion that the assessment of compensation by the Tribunal concerned is most fair and adequate. In my view, therefore, no interference is called for even qn the factual assessment of compensation to the objector-respondent.
8. Learned counsel appearing on behalf of the respondent has filed an application today praying for 15% solatium on the total amount of compensation which has been awarded to the objector. He submits that schedule 10 (2) framed under the Town Improvement Act which modifies Section 23(2) of the Land Acquisition Act having been held to be ultra vires, he is entitled to solatium on the total amount of compensation awarded. There is no dispute that the provisions of the Land Acquisition Act were applicable under the Town Improvement Act subject to such conditions and modifications which may be made therein. On the other hand counsel appearing on behalf of Nagar Mahapalika has submitted that the respondent should not be allowed to take up this point for the first time in appeal. He has relied upon a decision reported in (AIR 1974 SC 2077). Aflatoon v. Lt. Governor of Delhi in which it has been held that "the plea not raised in High Court cannot be considered in appeal." I am afraid that this ruling has no application to the facts of the present case. The point which has been raised by the counsel for the respondent is a pure question of law on facts which are admitted. He submits that under Section 23(2) of the Land Acquisition Act it is the statutory duty of the court to grant 15% solatium in addition to the market value of the land in cases of compulsory acquisition of property. In support of this submission reliance has been placed upon an unreported decision of a single Judge of this Court S. A. 354 of 1963 decided on 13-5-1968 (All) by K. B. Asthana, J. (as he then was). His Lordship observed in that case that award of 15% above the compensation for compulsory acquisition is a mandatory provision of law. Even if a party interested does not specially claim a relief in that regard, it becomes the duty of the court to apply the law and direct payment of a further sum of 15% on the compensation. Similar view has been expressed in a Division Bench case of this Court reported in (AIR 1933 All 742), Mohd. Sajjad Ali Khan v. Secretary of State. It has been held that:--
"Award of 15% on market value on compulsory acquisition is a statutory amount of compensation in addition to the market value; and the court has no power to deprive a claimant of that amount on the ground that he has not previously claimed it specifically."
9. I am not only in agreement with the view expressed in both these cases, but I am also bound by the decision of the Division Bench case. 15% solatium is a statutory right to additional compen-sation which an objector can claim for the compulsory acquisition of his land. Merely because this legal question was not taken up earlier, or it did not strike the counsel at an earlier stage would be no ground to deprive the citizen of his statutory rights to receive compensation provided by law. Moreover, the provisions of Order 41, Rule 33, Civil Procedure Code are wide enough for grant of a relief to an obiector even though he may not have filed an objection or may not have filed an appeal against the decree. In that view of the matter, I am of opinion that the objector must be granted solatium at the rate of 15% in addition to the compensation which has already been awarded to him by the Tribunal concerned.
10. For the reasons given above, this appeal has no merit and is hereby dismissed with costs. The respondent-objector shall be entitled to the award of compensation as directed by the Tribunal plus 15% solatium on the market value of the land acquired.