Authored By : Blank, Akram

Blank, J.

1. This Rule arises from the following facts. It is saidthat on 7th April 1942, the petitioner, along with other inhabitants of hisvillage in P. S. Mograhat, District 24-Parganas, was compelled to removehimself from his dwelling house on 48 hours notice, the land beingrequisitioned under the Defence of India Act. The petitioner contends that heleft behind a number of bricks and some bamboos growing in a clump covering anarea of about 9 cottas. Further, since the occupation of his land by themilitary authorities, the dwelling house had been demolished and his bricks andbamboos removed and used by the military authorities. The petitioner filed aclaim for compensation before the Land Acquisition Collector at Alipur whoawarded Rs. 628 in respect of the dwelling house and a periodical payment inrespect of the temporarily occupied lands, but did not make any award onaccount of the bricks and bamboos. The petitioner moved the Land AcquisitionCollector for re-consideration of the award and eventually obtained an award ofRs. 900 for the bricks and Rs. 100 for the bamboos. The petitioner consideredthe award to be inadequate and moved the Land Acquisition Collector to referthe matter to the arbitrator appointed under Section 19, Defence of India Act,claiming ES. 4600 in place of the aggregate of Rs. 1000 previously awarded. Thereference was made and registered under the Defence of India Act in the Courtof the arbitrator, the Special Acquisition Judge at Alipur. On 8th June 1944when the case was taken up for hearing by the arbitrator the opposite party,that is, the Province of Bengal, raised a preliminary objection as tojurisdiction, which prevailed. Hence the present rule.

2. Turning to the order of the learned arbitrator, we findthat the Province of Bengal contended that the arbitrator was not vested withjurisdiction to adjudge the compensation due to the claimant as a result ofloss sustained by him on account of the compulsory evacuation of the areaaffected under the Defence of India Act. The learned arbitrator recorded thathe had been appointed arbitrator under Section 19, Defence of India Act, readwith Defence of India Rule 75A. Having been appointed under Section 19, Defenceof India Act, he held that he could not adjudge the claim for compensation inrespect of loss sustained by acts done under Defence of India Rule 49. It wascommon ground before the learned arbitrator that no arbitrator or otherauthority had been appointed in terms of Defence of India Rule 96. The learnedarbitrator therefore ordered the record to be sent back to the Land AcquisitionCollector for being re-submitted to the arbitrator or other authority appointedby the Provincial Government under the provisions of Rule 96, Defence of IndiaRules. It will be seen that the material part of the order is the order thatthe record is to be sent back to the Land Acquisition Collector to bere-submitted to the arbitrator to be appointed under Defence of India Rule 96.The only question before us is whether the learned arbitrator was right orwrong. A preliminary question has been raised whether the rule is competent interms of Section 115, Civil P. C., but on the view we take it is not necessaryto enter into this matter.

3. To consider the question whether the learned arbitratorwas right or wrong in ordering the record to be returned to the Land AcquisitionCollector in order that the case might be placed before an arbitrator vestedwith the requisite competence it is necessary to consider briefly the relevantprovisions of the Defence of India Act and Rules. Under Section 19, Defence ofIndia Act, compensation is to be paid, in accordance with certain principles,for the compulsory acquisition of land and so on. Among these principles arethat the compensation is to be paid, if possible, by agreement and that whenagreement is not possible it is to be settled by an arbitrator. Defence ofIndia Rule 49 provides for the evacuation of areas in specified circumstancesand this rule is one of those referred to in Defence of India Rule 96. Rule 96provides inter alia that when property is affected, in various specified ways,by action taken in pursuance of Rule 49, among other rules, the owner is to bepaid compensation and in default of agreement between the owner and theGovernment the compensation is to be settled by an authority or personspecified by order. The cause of the trouble in the present instance is thatRule 96 explicitly provides that it is attracted where "the circumstancesare not such as to render the provisions of Section 19, Defence of India Act,1939, applicable." Thus, broadly speaking Rule 96 refers to moveableproperty and Section 19 refers to land, so far as now material. A copy of theRevenue Department notification empowering the learned Arbitrator has beenplaced before us. It is headed:

Government of Bengal, Revenue Department, (Requisition), No.7365 Regr.

and dated, Calcutta, 15th April 1944. It runs: "Inexercise of the power conferred by Clause (b) of Sub-section (1) of Section 19,Defence of India Act Department Notification.... The Governor is pleased toappoint.... as an Arbitrator for the determination of compensation under thesaid section....

It is not clear why the learned Arbitrator referred toDefence of India Rule 75A in his order, but the point does not appear to bematerial for the present purpose. On the face of the order appointing thearbitrator it appears that his powers are derived from Section 19, Defence ofIndia Act. Section 19 incorporates a reference to Section 299 (2), Governmentof India Act, 1935. That is, Section 19 refers, so far as material in the presentcontext, to land. From the facts already recited, it appears that compensationwas being claimed for bricks and bamboos as having been removed and used by theMilitary Authorities. Therefore, the learned arbitrator was evidently right inholding that he had no power to deal with the subject-matter sought to beplaced before him so long as he was acting under an authorisation limited toSection 19, Defence of India Act. On that view, the learned arbitrator cannotbe said to have committed an error in law by ordering the record to be sentback to the executive authorities for re-submission to an arbitrator to beauthorised thereafter to deal with the subject-matter of the contest. On theabove consideration we discharge the rule with costs. We assess the hearing feeat two gold mohurs.

Akram, J.

4. I agree.

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Keshab Chandra Pal vs. Governor-General of India in Council and Ors. (03.01.1945 - CALHC)