1. This is an appeal by the Madurai Sri Meenakshi Sundareswarar Devasthanams represented by its Executive Officer against the decree and judgment of the learned Subordinate Judge of Madurai in O.S. No. 90 of 1951 dismissing a suit filed against the Government for the recovery of a sum of Rs. 16,600 in the following circumstances. The lands described in Schedule A to the plaint admittedly belong to the plaintiff devasthanam. By an order dated 24th November, 1942, the said lands were requisitioned for securing the defence of British India in exercise of the powers conferred by Rule 75-A of the Defence of India Rules, and the lands were taken possession of and placed at the disposal of the Executive Engineer, Aviation Division, Madurai. The lands were eventually derequisitioned and returned to the plaintiff on 30th September, 1947 and 9th September, 1949. The plaintiff alleged that the lands were not returned to the devaslhanam in the same condition in which they were when they were taken possession of by the Government because several valuable trees on the lands had been cut by or allowed to be cut through the gross negligence of officers of Government and therefore the plaintiff suffered loss by deprivation of the trees and the income there from. The plaintiff gave an account of the trees alleged to have been cut and destroyed during the period of the defendant's possession. The plaintiff estimated the loss in a sum of Rs. 16,000 having regard to the value of the trees. The plaintiff made a claim on 13th June, 1950, demanding the said amount. But the Collector of Madurai did not comply with the demand. Thereafter the plaintiff gave notice under Section 80 of the Code of Civil Procedure and filed the suit on 19th February, 1951. Only one other fact need be mentioned, and that is that the plaintiff claimed compensation for the loss of some of the trees on the land which he alleged had been cut and destroyed by June, 1944, and he obtained compensation for the same on a reference to the learned District Judge of Madurai who was appointed arbitrator under the Defence of India Act (Exhibit A-2). The State of Madras represented by the District Collector, Madurai, the defendant, pleaded in defence that no trees were cut or destroyed or removed from the suit lands; nor did the defendant allow anybody to do so. They relied on the fact that the first complaint of the devasthanam was made only in June, 1950, more than two and a half years after some of the lands had been handed over and nine months after the remaining lands were handed over. The Government denied all liability to pay any amount to the plaintiff. The Government filed an additional written statement raising a legal plea, namely, that assuming that any trees were cut during the period of requisitioning the proper relief for the plaintiff was under Section 19 of the Defence of India Act, 1939, or that section read with Section 6 of Ordinace (XIX of 1946) or with Section 8 of Act (XVII of 1947) and the suit in a Civil Court was barred by Section 17(2) of the Defence of India Act, 1939, and Section 9 of Act (XVII of 1947). On this additional written statement, two additional issues were framed, namely:
1. Whether the suit is barred under Section 17(2) of the Defence of India Act, 1939, and Section 9 of Act (XVII of 1947) and
2. Whether this Court has no jurisdiction to try this suit as contended in the additional written statement ?
The learned Subordinate Judge held in favour of the defendant on both the issues and in view of his findings dismissed, the suit but directed each party to bear its own costs. The plaintiff is the appellant before us.
2. The only question which falls for decision in this appeal is whether the plaintiff's remedy is by way of a suit in a Civil Court or by an application to Government for payment of Compensation to be adjudged under Section 19 of the Defence of India Act in case there is no agreement as- to the amount of compensation. The learned Government Pleader did not take up the position that the plaintiff is entitled to no remedy whatever and that even if he had suffered damage he cannot claim to recover any compensation. The material provision as regards payment of compensation is Section 19 of the Defence of India Act. In so far as it is material, it runs thus:
Where by or under any rule made under this Act any action is taken of the nature described in Sub-section (2) of Section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out, that is to say:
(a) Where the amount of compensation can be fixed by agreement it shall be paid in accordance with such agreement.
(b) Where no such agreement can be reached, the Central Government shall appoint as arbitrator a person qualified tinder Sub-section (3) of Section 220 of the abovementioned Act for appointment as a Judge of a High Court.
Clause (f) provides for an appeal to the High Court against an award of the arbitrator except in cases where the amount thereof does not exceed an amount prescribed in that behalf by rule made by the Central Government. Clause (a) makes it incumbent on the arbitrator in making the award to have regard to the provisions of Sub-section (1) of Section 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable. Obviously Section 19 was intended to, and has always been understood to, cover cases of both acquisitioning and requisitioning. Sub-clause (ii) of Clause (e) of Section 19 refers to acquisition of a permanent as well as acquisition of a temporary character, the latter being really in the nature of requisition. Now Section 23(1) of the Land Acquisition Act inter alia provides that in determining the amount of compensation to be awarded the Court shall take into consideration.
the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof.
4. In the present case what is alleged by the plaintiff is that there were valuable trees in the requisitioned lands at the time when the Government took over possession but when the lands were delivered back to the plaintiff, several trees were missing and evidently had been cut away and removed. In our opinion the damage sustained by the plaintiff by this action of the Government will also be a matter to be taken into consideration by the arbitrator in fixing the compensation under Section 19 of the Act. It is clear that the plaintiff's present claim would fall within the scope of Section 19 of the Act.
5. Having regard to the interpretation of Section 19 it becomes easy to decide the other question, namely, whether the present suit is barred under Section 17(2). That Sub-section runs thus:
Save as otherwise expressly provided under this Act, no suit or other legal proceeding shall lie against the Crown for any damage caused or likely to be caused by anything in good faith done or intended to be done in pursuance of this Act or any Rules made thereunder.
6. Section 19 of the Act does expressly provide for a legal proceeding against the Crown in respect of the matter which forms the basis of the plaintiff's present suit. Therefore, no suit would lie against the Government for the same relief which the plaintiff would be entitled to obtain from the arbitrator appointed under Section 19 of the Defence of India Act. There is no decided case which exactly deals with the two questions arising in this case. The learned Government Pleader referred us to the decision of a single Judge of the Calcutta High Court in Purnendu v. Union of India : AIR1956Cal66 but we have not been able to derive much assistance from this decision. On an interpretation of the sections of the Defence of India Act, we are of opinion that the remedy of the plaintiff is under Section 19 of the Act and not by way of an ordinary suit. It is not necessary to deal separately with the provisions of Act (XVII of 1947) which only provides for the continuation of the requisitioning made under the provisions of the Defence of India Act of 1939. This Act was preceded by two Ordinances to which also reference is unnecessary.
7. Though the suit has to be dismissed on our above finding, we may in fairness point out that the plaintiff did make a claim for compensationon account of the loss of trees and under Section 19 of the Defence of India Act unless an agreement had been reached between the Government and the plaintiff, it was incumbent on the Government to have appointed an arbitrator be adjudicate on the dispute. The Government have apparently not appointed any arbitrator to deal with the claim made by plaintiff in his letter dated 13th June, 1950. It will now be the duty of the Government to appoint such arbitrator. The claim made by the plaintiff on 13th June, 1950, must be deemed to be still undisposed of and therefore there can be no question of limitation. We have no doubt that the Government will adopt the procedure laid down in Section 19 of the Act which is substantially re-enacted in Act (XVII of 194.7). Except for the above observations the appeal fails and is dismissed; but we think the proper order to make is to direct both the plaintiff and the defendant to bear their own costs.