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Gobinda Lal Daga and anr. Vs. State of West Bengal and anr. - Court Judgment

LegalCrystal Citation
SubjectArbitration;Property
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4249 of 1975
Judge
Reported inAIR1977Cal182,81CWN474
ActsRequisitioning and Acquisition of Immovable Property Act, 1952 - Sections 8(1) and 25; ;Defence of India Act, 1962 - Sections 29 and 30; ;Defence of India (Requisitioning and Acquisition of Immovable Property) Rules, 1962 - Rules 12 and 13; ;Arbitration Act - Section 14(2)
AppellantGobinda Lal Daga and anr.
RespondentState of West Bengal and anr.
Advocates:A.C. Bhabra and ;J. Pugalka, Advs.
Excerpt:
- .....to 28th february, 1969. the premises was derequisitioned on july 10, 1968 on the expiry of the defence of india act and, it is said, it was requisitioned again under the west bengal premises requisition and control (temporary provisions) act, 1947 according to the petitioners. the 'petitioners were not satisfied with the determination of the rent compensation made by the additional collector as aforesaid and they prayed for a reference to arbitration under the provision of the defence of india act. the state of west bengal accordingly by order dated 27th august, 1973 appointed mr. s. ahmed, additional district and sessions judge, 24-parganas as an arbitrator for determination of compensation payable for such requisition of the property, that is, the requisition for the period from.....
Judgment:

S.K. Datta, J.

1. The petitioners are the owners of premises No. 902 Barrackpore Trunk Road, 24-Parganas. A part of "the said premises was requisitioned under Section 29 (2) of the Defence of India Act, 1962 (Act 51 of 1962) on 30th September, 1965 for setting up a fire station at Kamarhati for Civil Defence purpose. The possession of the premises requisitioned, it appears, was taken on October 6, 1965. The petitioners submitted their claim for rent compensation at the rate of Rs. 2,500/- per month and electric charges at the rate of Rs. 175/- per month. The Additional Collector (North) Barasat, 24-Paraganas on June 10, 1968 fixed rent compensation at the rate of Rs. 227/- per month for the period from 1st of March 1968 to 28th February, 1969. The premises was derequisitioned on July 10, 1968 on the expiry of the Defence of India Act and, it is said, it was requisitioned again under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947 according to the petitioners. The 'petitioners were not satisfied with the determination of the rent compensation made by the Additional Collector as aforesaid and they prayed for a reference to arbitration under the provision of the Defence of India Act. The State of West Bengal accordingly by order dated 27th August, 1973 appointed Mr. S. Ahmed, Additional District and Sessions Judge, 24-Parganas as an Arbitrator for determination of compensation payable for such requisition of the property, that is, the requisition for the period from 6th October, 1965 to 9th July, 1968. As Mr. Ahmed was transferred, the State Government by subsequent order dated June 27, 1974 appointed in his place Mr. L. K. Pal, Additional District and Sessions Judge, 24-Par-ganas as an Arbitrator for such determination. The award was, it appears, made by the Arbitrator on 13th September, 1974 and same rate of compensation was awarded as rent compensation for the aforesaid period, According to the petitioners, no notice of appointment of Mr. Pal as an Arbitrator was served on the petitioners nor they were given any notice of the proceeding before him. On enquiry through their advocate the petitioners came to know on March 14, 1975 about the award that was passed ex parte as stated above. On April 2, 1975 the petitioners requested the Arbitrator to file his award in Court under the provision of Section 14(2) of the Arbitration Act, 1940. On his failure to do so, the petitioners on April 16, 1975 filed an application before the District Judge at Alipore giving rise to Misc. Case No 75 of 1975 for a direction on the Arbitrator to file the award in Court. This application came up for hearing before the District Judge and by his order dated August 16, 1975 the application was dismissed as not maintainable. The learned Judge held that in view of the provisions of Section 25 of the Requisitioning and Acquisition of Immovable Property Act, 1952 (Act XXX of 1952) which was inserted by an amendment Act 31 of 1968, the provisions of the Arbitration Act did not apply to proceeding before the Arbitrator. Accordingly, the Court had no jurisdiction to entertain, consider or dispose of such application. The petitioner have obtained this Rule against the aforesaid order.

2. Mr. Bhabra, learned advocate appearing for the petitioners, submitted that the learned Judge committed an error in the exercise of jurisdiction in thinking, in any event, that the provisions of Act 30 of 1952, as amended were applicable to the facts of the case. Section 25 provides as follows :--

"25. Special provision as to certain requisitions under Act 51 of 1962-- (1) Notwithstanding anything contained in this Act, any immovable property requisitioned by the Central Government or by any officer or authority to whom powers in this behalf have been delegated by that Government under the Defence of India Act, 1962, and the rules made thereunder (including any immovable property deemed to have been requisitioned under the said Act) which has not been released from such requisition before the 10th January, 1968, shall, as from the date, be deemed to have been requisitioned by the competent authority under the provisions of this Act for the purpose for which such property was held immediately before the said date and all the provisions of this Act shall apply accordingly......"

3. If Act XXX of 1952 as amended applied to the arbitration in the instant case at least for a part of the period of requisition, in view of the provisions of Section 8(1)(g) thereof, nothing in the Arbitration Act, 1940 would apply to arbitration under challenge before us. The learned Judge held that the application before him was not maintainable as the Act XXX of 1952 applied to the requisition in question.

4. The provisions of this section it is to be noted, apply to a requisition of any immovable property by the Central Government or by any officer or authority to whom powers in this behalf have been delegated by the Government under the Defence of India Act, 1962 and the Rules framed thereunder. In the instant case, the requisition was made by the State Government under powers conferred by Section 29 of the Defence of India Act, 1962. That the requisition was made by the State Government will be evident from the preamble of the orders dated August 27, 1973 and June 27, 1974 which we have referred to above. The preambles are as follows :

"(i) Government of West Bengal Land Utilisation and Reforms and Land and Land Revenue Department Requisition (L. I.) Branch.

ORDER.

No. 16348-Reqn. (D. D/2A-12/72, dated the 27th August, 1973.

Whereas the property specified in the Schedule below as requisitioned by the State Government under Section 29 of the Defence of India Act, 1962 (Act 51 of 1962).

(ii)

ORDER.

No. 11304-Reqn . (D. D/2A-12/72, dated Calcutta the 27th June, 1974.

Whereas the property specified in the schedule below was requisitioned by the State Government under Section 29 of the Defence of India Act, 1962 (Act 51 of 1962)."

5. In view of this requisition, the provision of Section 25 of Act 30 of 1952 have no application and this aspect of the controversy escaped the attention of the learned Judge,

6. We shall now consider the other contention raised on behalf of the petitioners about the applicability of the provisions of the Arbitration Act to the instant arbitration. It will appear from Section 45 of the Arbitration Act that the provisions of the said Act shall be binding on the Government which obviously include both the Central Government and the State Government as provided in Section 3(23) of the General Clauses Act, 1897. Section 46 of the Arbitration Act is to the following effect :

"46. The provisions of this Act except Sub-section (1) of Section 6 and Sections 7, 12 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder."

7. It is therefore, obvious that when there is no prohibition in other statutes wherein there is a provision for arbitration as regards applicability of the provisions of the Arbitration Act, such provision would be applicable to arbitrations under the other statutes unless they are inconsistent with the other enactments or with any rules made thereunder. Section 19, Clause (g) of the Defence of India Act, 1939 provides that nothing in any law for the time being in force shall apply to arbitrations under this section. Clause (g) is worded in the following manner.

"Save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitrations under this section."

8. Again, in the Requisitioning and Acquisition of Immovable Property Act, 1952 (Act 30 of 1952), it is provided in Section 8(1), Clause (g) as follows:--

"Nothing in the Arbitration Act, 1940 (Act X of 1940) shall apply to arbitrations under this section."

9. It will further be found that under the provision of Section 19 (1) (f) of the Defence of India Act, 1939, there is a provision for an appeal to the High Court against an award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government Section 11 of Act 30 of 1953 provides for an appeal from the award of an arbitrator to the High Court within whose jurisdiction the requisitioned or acquired property is situate.

10. It will thus be seen that the application of the provision of the Arbitration Act was expressly excluded by the provisions cited above and, accordingly, in cases of an award passed under those Acts, it is not possible for any aggrieved party to avail himself of the provision of the Arbitration Act.

11. We do not find any similar provision or prohibition in the Defence of India Act, 1962. The relevant sections are Sections 29 and 30. Section 29 provides for requisitioning of immovable property by the Central Government or the State Government. Section 30 provides for payment of rent compensation in respect of the requisition of any immovable property and such amount shall be determined by taking into consideration the factors mentioned in that section. It is further provided that if anybody is aggrieved by the amount of compensation so determined, he may apply to the appropriate Government for referring the matter to an Arbitrator for determining the amount of compensation in respect of such requisition. There is no other provision providing for any appeal against the award as may be passed by the Arbitrator appointed in that behalf. There is also no provision excluding operation of the provision of the Arbitration Act in respect of such arbitration proceeding.

12. Mr. Bakshi, learned advocate appearing on behalf of the State, submitted that the Defence of India Act, 1962 and the Rules framed thereunder constitute a complete Code and, accordingly, there is no scope for application of any provision of the Arbitration Act to such proceeding. He drew our attention to the Rules framed under Section 38 of the Defence of India Act which lays down that the Central Government or the State Government may make rules for carrying out the purposes of this chapter, the chapter being Chapter VI -- requisitioning and acquisition of immovable property and it further provides that in particular, and without prejudice to the generality of the foregoing powers, such rules may prescribe the procedure to be followed in arbitration proceedings under this Chapter. In pursuance thereof, the Central Government has framed rules called the Defence of India (Requisitioning and Acquisition of Immovable Property) Rules, 1962. Under these Rules, an Arbitrator has been given certain powers of Civil Court by Rule 12, Rule 13 provides for making of the award by the Arbitrator in writing. It further provides that the award shall thereafter be signed setting forth the grounds for his decision of the amount of compensation which in his opinion should be allowed for the property and for the apportionment thereof between the persons interested in the property. It is further provided that a copy of the award should be sent by post to all parties to the reference and to the competent authority together with the ground on which the award is based. Rule 15 provides for payment of compensation determined in accordance with Section 30, Clause (i) of the Act which shall be payable on the expiry of every three months in respect of a building on an urban land and on the expiry of every six months in respect of rural land. These are the provisions under the Rules in respect of the arbitration under the said Act. In these Rules as in the Act, as we have seen, there is no provision for any appeal from the award of the arbitrator as in other like two statutes we have considered above. It will also be seen that there is also no provision excluding the application of the Arbitration Act to such proceeding. The Rules, as we have seen, provide for the procedure of the arbitration till the making of the award and the payment thereof but there is no procedure laid down as to what will happen if any party feels aggrieved by the award for any reason whatsoever. Mr. Bakshi has drawn our attention to the applications made in similar circumstances by the aggrieved party in this Court under Article 227 of the Constitution. He has referred us to a decision in Smt. Narayani Debi Sureka v. Union of India, where this Court on an application under Article 227 of the Constitution interfered with the award setting aside the same and sent back the matter before the tribunal below for assessment of the compensation in accordance with law in the light of the observation made in the judgment. He also referred us to an unreported decision in C. R. No. 2568 of 1972, (Srimati Roy v. Union of India) dated March 6, 1975 (Cal) where another Division Bench of this Court interfered with an award made in respect of a requisition of a property under Section 29 of the Defence of India Act. It may be that an application under Article 227 of the Constitution may be a convenient mode of challenging the award on grounds permissible in law under that Article and we also note that it has been practically the uniform and consistent practice in this Court to interfere with the award on proper grounds. Even so, Article 227 is no part of the Defence of India Act and interference in that Article is also circumscribed by limitation imposed by judicial decisions. As a substantive right has been conferred on a party under the relevant provision of the statute under Section 46 of the Arbitration Act in absence of any prohibition, we do not think that the provision of Article 227 can in any way limit such right. Further, the Rules to which our attention has been drawn and with the making of the award and sending a copy of the award to the competent authority and other interested parties. It may also be of interest to note that in the relevant provisions unlike those in Arbitration Act, the arbitrator has to give his reasons as the basis of the award and to that extent the provision of the Arbitration Act may be said to be superseded but it cannot be extended beyond. After considering the relevant provisions, we are of opinion that in the context of the statutory provision it must be held that the provisions of the Arbitration Act are applicable to the statutory arbitrations contemplated under the Defence of India Act, 1962 except in respect possibly of the reasons forming the basis of the award which we have just referred to. Accordingly, the application filed by the petitioners under Section 14(2) of the Arbitration Act appears to be otherwise maintainable in law. In Nawabzada S. M. Ali Dabir v. Nawabzada S. M. Ali Kabir Khan, it was held that in respect of award under Section 58 of U. P. Court of Wards Act, provisions of the Arbitration Act were applicable for enforcement of the award in absence of any provision to the contrary. In Sachindra v. Chief Commissioner Tripura, AIR 1970 Tripura 94, it was held that determination of compensation for requisition by Arbitrator is subject to Sections 45 and 46 of the Arbitration Act, 1940.

13. The next point for consideration is whether the District Judge had any jurisdiction to entertain such application in his original jurisdiction. Under Section 2(c) of the Arbitration Act, an application under Section 14(2) has to be filed in Court which would otherwise have jurisdiction to try a suit in respect of the subject-matter of reference. Mr. Bakshi submitted that the District Judge has been conferred with original jurisdiction only in respect of specific matters like matrimonial cause or guardianship award matters and not suits as contemplated in Section 2(c). Mr. Bhabra referred to Section 18 of the Bengal. Agra and Assam Civil Courts Act, 1887 and submitted that competency used in that section is a rule of procedure and not of jurisdiction and does not therefore oust the jurisdiction of the Courts of higher grade who had concurrent jurisdiction in the matter. Mr. Bhabra relied on a decision in Matra Mondal v. Hari Mohun Mullick alias Mothura Mohun Mullick, reported in (1890) ILR 17 Cal 155 wherein it was held that the words "not affecting the jurisdiction of the Court" in Section 578 of the same Code mean "not affecting the competency of the Court to try". It was further held that the error in instituting a suit in a Subordinate Judge's Court instead of in that of the Munsiff is not an error which affects the jurisdiction of the former Court within the meaning of Section 578 of the Code of Civil Procedure of 1882. Accordingly, the District Judge, Mr. Bhabra submitted, has ample jurisdiction to entertain an application according to law and pass appropriate directions. As we propose to remit the case to the learned Judge, we do not feel inclined to consider the points raised before us for the first time when this aspect of the question was not considered by the learned Judge.

14. In the view we have taken, this Rule is made absolute and the impugned order is set aside. The learned Judge will now consider the application in accordance with law keeping in mind the above contentions raised on behalf of the respective parties if they are raised before him in regard to his jurisdiction to entertain and dispose of the application. We also make it clear that we are expressing no opinion about the merits of the contentions of the parties made before us on the point of jurisdiction.

15. Mr. Bakshi prays for stay of operation of this order, Let the operation of this order be stayed for two months from date.


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