G.N. Das, J.
1. This appeal is at the instance of the Collector of Darjeeling and arises out of certain proceedings before an Arbitrator appointed under Section 19, Defence of India Act. The dispute between the parties concerns the compensation payable in respect of the disputed premises known as Caroline Villa. On 1-11-1944, in pursuance of an order of requisition made under Rule 75A, Defence of India Rules, possession of the disputed premises was taken over by the Government. We have been informed by the learned advocates appearing on both sides that the said premises has been derequisitioned.
2. The premises in question was in the occupation of one Mr. Hall who used to pay rent of Rs. 200 per month, but by virtue of certain proceedings taken under the Bengal House Rent Control Order the rent of the said premises was fixed at Rs. 256 from 1-5-1944. At the date of the taking of possession, therefore, the tenant was liable to pay a sum of Rs. 256 as the rent of the said premises. As the parties could not agree as to the compensation to be paid, the matter went before the Arbitrator. The Arbitrator was of the opinion that the said rent assessed under the Bengal House Rent Control Order was not a fair rent. In his opinion the fair rent of the premises would be Rs. 400 per month and he assessed compensation on that basis. Against this order the Collector of Darjeeling has preferred this appeal.
3. The learned Senior Government Pleader appearing for the appellant submitted that in view of the Rent Control Order which was in force at the time of requisition compensation should have been assessed at Rs. 256 per month and that in any event the rent so fixed should be taken to be fair rent, as there is no suggestion that the rent paid in December 1941 was not fair rent. Mr. Hiralal Chakravarty appearing for the respondent, however, contended that as the claimants are entitled to get fair rent on requisition, the Court is competent to estimate the fair rent payable and to award compensation on that basis. It is now firmly established that the effect of Rule 75A (4), Defence of India Rules, read with Section 19, Defence of India Act, is that in case of a requisition the claimant is entitled to get compensation for the interest in land which was requisitioned on the principle embodied in Section 23(1), Land Acquisition Act. In the case of Province of Bengal v. Board of Trustees for Improvement of Calcutta, 50 C. W. N. 825 at p. 834 : (A. I. R. (33) 1946 Cal. 416), Mitter J., observed that in such a case compensation has to be assessed at the value of his possession, and that such value is measured by the fair rent to be paid in respect of the premises. If the fair rent is capable of direct assessment the Court has to proceed on that basis. Ordinarily, rent which is being paid in respect of certain premises at any point of time may be regarded as the fair rent payable therefor. There is no suggestion that the rent which was being paid in December 1941 was unfair. As such the rent assessed by the Controller under Section 6, Bengal House Rent Control Order, may be taken to be fair rent in the present case.
4. The method adopted by the arbitrator in finding out the fair rent does not commend itself to me. It may be conceded that the potential value of the property is a relevant fact to be taken into consideration. I do not, however, agree with the view that in case of a temporary acquisition, as in the present case, the Court should find out the fair rent on a supposition that the premises might fetch a higher rent after structural alterations therein by laying out money, in a case like the present, where the tenant is already in occupation and there is a remote possibility of his being ejected.
5. After the case was heard and before the judgment was signed by us our attention was drawn to a decision of this Court in the case of Mohammad Ekramul Huq v. Province of Bengal, : AIR1950Cal83 . We directed this matter to be placed on the list as to be mentioned and we have considered the matter further.
6. The above decision does not affect, the view we have taken in the facts of this case. The observations made in that case to the effect that
'in deciding upon fair rent, for the purposes of Section 23, Land Acquisition Act, it must be a notional fair rent of a hypothetical tenant, and the assessment of such notional rent must be based upon a consideration which does not take into account restrictions temporarily imposed by any restrictive executive order or legislation like Rent Control Order, etc. The assessment in practice should be as it was of a house of like nature let out for the first time to a tenant who is not compelled to take it up and by a landlord who is not compelled to let it out. The practical method will be to assess rent as if it was a new house for the first time let out on that date.'
7. The above observations are somewhat broadly stated. In a case of requisition the Court is called upon to assess the market value of the possessory interest of the owner in the premises in question. Such a market value cannot be determined in the abstract. Market value means the value which a willing seller may expect from a willing purchaser in the open market. Transactions in the open market will be motived by the fact that the premises is subject to an order under the Rent Control Order. If the land had not been requisitioned the owner could have realised nothing more than the rent as determined under the Rent Control Order during the subsistence of that order. The owner cannot claim a higher value of his interest because of the requisition. It is, however, not necessary to pursue the matter in the facts of this case. The case under discussion is also distinguishable because in that case there was no order made under the Rent Control Order.
8. The learned Senior Government Pleader fairly conceded that in the present case the Government is prepared to pay compensation at a rate of rent payable by virtue of the provisions of the Rent Control Temporary Provisions Act, 1948 (Act XXXVIII  of 1948) since this Act came into operation, that is from 1-12-1948. Under this Act the landlord would be entitled under Section 3(10), and the schedule to that Act to get 25 per cent, increase on the basic rent. The basic rent in the present case is Rs. 256.
9. The result of the above discussion leads us to hold that compensation would be paid at the rate of Rs. 256 per month till November 1948 and thereafter at Rs. 320 per month.
10. In the result the award made by the arbitrator will be set aside and in lieu thereof compensation will be awarded as above.
11. The appeal is accordingly allowed and the decision of the arbitrator is set aside.
12. The appellant is entitled to his costs in this appeal as also in the Court below--the hearing fee in this Court being assessed at three gold mohurs and in the lower Court also three gold mohurs.
13. The amount decreed must be paid within six months from date.
14 I agree.