UNION OF INDIA Vs. ON THE DEATH OF NIRODE KANTA SEN, HIS HEIRS AND LEGAL REPRESENTATIVES NIHAR KANTA SEN & ORS.

JUDGEMENT

(1.) THIS appeal has been preferred by Union of India under Sec. 19 sub -section (1) (i) of the Defence of India Act, 1939, and is directed against an award dated 10th September, 1960, made by an Arbitrator appointed under clause (b) of subsection (1) of Sec. 19 of the Defence of India Act, 1939 read with sub -section (4) of Sec. 1 of that Act and Sec. 6 of the General Clauses Act X of 1897 by the Government of West Bengal in exercise of the powers conferred by Notification No. 1365 -OR -42 dated 19th September, 1942 issued by Government of India, Defence Department. There is also a cross -objection preferred by the Respondent in the appeal under Rule 22 Order 41 of the Code of Civil Procedure. The Arbitrator was appointed for disposing of the Reference above -mentioned by determination of compensation payable in respect of a requisition of properties by Order No. 64 dated 8th June, 1843, made under Rule 75 of the Defence of India Rules, 1939. The property consisted of lands, buildings and other materials on that land in mouza Brindabanpur, J.L. No. 75 within Kanksa Police Station in the District of Burdwan. The purpose of that requisition as it appears in the order of requisition was "for securing the defence of British India, the public safety, the maintenance of public order, or the efficient prosecution of the War or for maintaining supplies and services essential to the life of the community". It also appears from that Order No. 64 D.I. dated 8th June, 1943 that the requisition of that property was in connection with setting up Birudia landing ground for use of aircrafts. It may be mentioned that here it was the admitted case of the parties before the Arbitrator and also at all stages of the proceedings that construction work of that air -field on the land stated in October, 1942 when even before any formal letter of requisition was issued or any order of requisition was made, the military authorities occupied the land and the building standing thereon, including all furnitures and fixtures and other properties thereon by turning out the occupants. No inventory of the movable properties or of any thing at all was made either at the time when possession of the properties was so taken or long years thereafter.

(2.) IN June, 1943 on receipt of a letter of requisition from Major James F. Hyland, Base Engineer (Air) the Land Acquisition Officer issued the Requisition Order No. 64 D. I of 1943 -44 copies thereof were sent to Ex -Engineer, AV. Dn. and others and was directed to be served on interested persons and in the locality. The manner of service that was effected appears from Ext. 1 in the case in which the report of service says that 'not having found Nirode Kanta Sen present, his employee Jaladhar Das was asked to receive the notice but he refused to accept the same and put his signatures hence a copy was served by hanging on the front door of the kutchary house'. That service report is dated the 16th of June, 1943 and order -sheet in the land acquisition proceeding shows that it was received on 17th of June, 1943 and was filed with the records. Nothing further was done in that respect and next step in the land acquisition proceeding was taken by preparing schedule of properties in the locality. Nirode Kanta Sen filed his first claim on 22nd April, 1943, claiming Rs. 1,93,4321 up to that date. He followed it up by another on 6th of December, 1943 laying his claim at Rs. 2.49,914/ -as compensation recurring and nonrecurring on various accounts regarding movable and immovable properties lying within the requisitioned area.

(3.) IN the land acquisition proceeding the Collector made an offer of fair compensation by assessing recurring crop compensation at a total sum of Rs. 11,878.8 annas. That was disputed by claimant Nirode Kanta Sen. He asked to be informed about the basis of calculation on which the Collector had assessed flat compensation. But he was not given that information on failure of any agreement as to the amount of compensation there was an application made by Nirode Kanta Sen on 27.3.57 (in which claim petitions previously made were also annexed) for a reference to arbitration and thereupon the Reference Order we have mentioned above was made in August, 1957. The learned Arbitrator who has heard and disposed of the Reference was Sri A. K. Das District Judge, Burdwan. He was vested with the powers of the Arbitrator in the case by Government order No. 11042 Reqn. dated 1st June, 1959 and in that arbitration proceeding claim was made on behalf of the heirs of Nirode Kanta Sen, (who had in the meantime died) by reiterating the claims made on 22.4.1943 and 6.12.43 which were on record of the Reference received by the Arbitrator. On behalf of the Collector of Burdwan a statement of fair amount of compensation was also filed before the Arbitrator in February, 1959 reiterating that crop compensation from 1349 to 1359 B. S. assessed at Rs. 844 -7 -0 and compensation for jungle land from 1349 to 1359 assessed at Rs. 3437 -1 -0 total amounting to Rs. ,11,878 -8 -0 was fair compensation. In that statement it was also stated that