J.N. BHATT, J.

(1) ADMIT. Service of notice of admission is waived by Shri P. G. Desai, Government Pleader, S/shri L. R. Poojari and A. J. Desai, A. G. Ps.

(2) UPON joint request and in view of the nature of dispute, which is very limited and which is also covered by various decisions, the entire group is ordered to be heard today.

(3) IN this group of 43 appeals, common questions are involved. Upon joint request the entire group, after hearing Shri Amin, learned Advocate and the learned government Pleader, is being disposed of by this common judgment.

(4) BY invoking the provisions of S. 54 of the Land Acquisition Act, 1894 (hereinafter referred to as " the" for brevity), the appellants, who are the original land owners and claimants, have challenged the common judgment recorded on 10-9-1995 by the District Court, Ahmedabad (Rural) at Mirzapur in Land Acquisition case Nos. 601 to 642 of 1989 and Land Acquisition Case No. 203 of 1990.

(5) THE award under S. 18 of the allowed the references partly. The reference Court in its common judgment has directed the respondents-original opponents to pay the claimants an additional amount of compensation at the rate of Rs. 13. 00 per sq. mtr. for their acquired lands in their respective Land Reference cases together with 30 percent solatium with interest at the rate of 9 percent per annum for the period of one year from the date of taking over possession of the acquired lands and thereafter at the rate of 15 percent per annum from the expiry of that one year till payment.

(6) THE Reference Court has also held that the appellants-original claimants are entitled to get 12 percent increase on the market value on the acquired lands for the period from 20-11-1986 to 9-3-1989, like that from the date of publication of notification under S. 4 (1) of the till the date of award under S. 23 (1a) of the. The impugned common judgment also directs that 5 percent Government share shall be deducted from the compensation awarded in respect of the lands acquired, if they are of new tenure.

(7) IT may be mentioned here that the respondents have not filed the appeals against the impugned common judgment. No cross-objections are also filed. After hearing the learned Advocate Shri Amin, for the appellants-original claimants and the learned Government Pleader Shri Desai for the respondents-original opponents and considering the facts and circumstances emerging from the record of the present case, copies whereof came to be supplied to us, the controversy has shrunk down to a small dimension as highlighted, hereinafter.

(8) ONLY following two submissions are raised on behalf of the appellants : (i) that the claimants are entitled to the benefit of the provisions of S. 23 (1a)of the, not from the date of notification under S. 4 (1) of the, but from the date of possession, if it is earlier. (ii) that the deduction of 5 percent Government share from the amount of compensation is not permissible and legal in view of the decision rendered by this bench in earlier such matters.

(9) THE aforesaid two contentions are the questions of law. However, it was not possible for us to ascertain from the original record, which we had also called for, as to what was the exact date of taking over possession of the acquired lands by the acquiring authority from the claimants. It was also not pointed out or indicated by the learned Advocates appearing for the parties with regard to the date of possession. However, the learned Advocates appearing for the parties are at ad idem and in their consensual statement stated that the benefit of provisions of S. 23 (1a)of the would be available to the claimants provided possession of the acquired land is taken over by the authority or is handed over by the claimants prior to the publication of notification under S. 4 (1) of the. Therefore, insofar as first contention raised in support of the group of appeals is concerned it would not detain us any longer.

(10) PURSUANT to the notification under S. 4, sub-S. (1) of the issued by the Collector and published in the Gazette on 20-11-1986 followed by S. 6 (1) of the on 3-8-1988, the award in case of each owner of the parcel of land came to be made by the Land Acquisition Officer under S. 11 of the. The Land acquisition Officer awarded an amount of compensation at the rate of Rs. 2. 00 per sq. mtr. in respect of the acquired land. The acquisition of lands of the original claimants, which are situated at village Sarangpur in Ahmedabad district was for the purpose of Khambhada-Sarangpur Irrigation scheme.

(11) INSOFAR as the first contention, as aforesaid is concerned, it would be appropriate at this juncture to refer to the provisions of S. 23 (1a) of the, which read as under :it could very well be seen from the aforesaid provisions that the benefit under it could be granted or in other words the claimants are entitled to, in addition to market value of the land, 12 percent per annum on such market value for the period commencing on and from the date of publication of notification under S. 4 (1) of the, in respect of such land to the date of the award of the Collector or the date of taking possession of the land whichever is earlier. Therefore, if the date of taking over possession of the acquired land is preceding the publication of notification under s. 4 (1) of the, the claimants would be entitled to the benefit of S. 23 (1a)of the, not only from the date of publication of notification but from the date of possession taken by the authorities. It is jointly submitted that there is no clear evidence on record as to what was the exact date of taking possession of the land after having examined the original record. It was also not possible to ascertain about the factum of taking over possession and its relevant date. However, it was therefore, jointly submitted that since the claimants are entitled to the benefit of provisions of S. 23 (1a) of the from the date of taking possession, if it is earlier to issuance of publication of notification under S. 4 (1) of the, it may be clarified and accordingly directed. We find full substance in those consensual statements.

(12) IN the circumstances the direction in second paragraph of the final order in the impugned common judgment dated 10-9-1995 of the District Court, ahmedabad (Rural) at Mirzapur, requires modification. If the date of taking possession of the respective lands of the claimants is earlier than the publication of the notification under S. 4 (1) of the, the benefit available under S. 23 (1a)of the shall be given from that date being earlier date between the date of taking possession and publication of the notification under S. 4 (1) of the. In other words, the claimants shall also be entitled to the benefits of the provisions of S. 23 (1a) of the not from the date of publication of the notification but from the date of taking possession of their lands, if possession as such and in reality taken prior to the date of publication of notification under S. 4 (1) of the, over and above what is awarded by the Reference Court. Accordingly the first contention stands adjudicated.

(13) SECOND and last contention is also quite clear in view of the settled proposition of law. This Court in number of cases has held that deduction of market value under S. 43 of the Bombay Tenancy and Agricultural Lands Act (67 of 1948) is not permissible in a case of compulsory acquisition of land like the cases on hand. Placing reliance on the decision of the Apex Court in State of maharashtra v. Babu Govind Gavate, AIR 1996 SC 904 [LQ/SC/1995/1047] , it appears that the attention of the Reference Court was not drawn to the said decision and the division Bench judgment of this Court.

(14) BE that as it may, the learned Government Pleader has fairly stated that the decision of the Apex Court, followed by this Court must be applied and accordingly modification is necessary in the impugned common judgment of the reference Court.

(15) IT has been, succinctly, propounded in the provisions of S. 43 of the bombay Act enacted to protect right, title and interest of the tenant, who purchased property and became owner, with a view to see that he is not deprived of his ownership, right to possession and enjoyment, thereof, as a tiller of the soil to perpetuate the object of the Bombay Act. Notwithstanding that under no circumstances, S. 43 confers power on the Government when it acquires the land exercising its power of eminent domain and deduct any amount from compensation payable to the owners of the land to be determined and fixed in view of the provisions of S. 23 of the. The notification of the Government of Gujarat requiring to pay certain amount of share to the Government out of the amount of compensation shall not be obviously attracted in a case of compulsory acquisition proceedings and resultant compensation. Thus, the second contention also comes to be resolved.

(16) NO other contention is raised in this group of appeals. The aforesaid two contentions were only agitated before us, which we have answered.

(17) AFTER having examined the facts and circumstances emerging from the record of the present case and considering the evidence on record and also relevant proposition of law, the appeals are required to be partly allowed to the aforesaid extent. Accordingly, the appeals are partly allowed. Obviously, the direction to deduct 5 percent Government share from the compensation amount awarded to the appellants in respect of the acquired lands, if they are of new tenure nature, shall stand quashed and set aside.

(18) WE also direct the respondents to deposit amount of compensation in the light of the modified judgment and award under S. 18 of the pursuant to our aforesaid directions as expeditiously as possible, but not later than eight weeks from today.

(19) IN view of the peculiar facts and fair submissions before us we leave the parties to bear their own costs of this appeal.

(20) A copy of this common judgment shall be placed in 42 other appeals arising out of the group of 43. No order as to cost.