Patna High Court
Chotanagpur Banking Association, Ltd. ... vs Govt. Of India And Ors. on 22 August, 1957
Equivalent citations: AIR1957PAT666, 1957(5)BLJR731, AIR 1957 PATNA 666, ILR 36 PAT 1177
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Raj Kishore Prasad, J.
1. As these three cases are interconnected, and, common questions of law arise in all of them, they have been heard together.
2. In each of these cases, the petitioner, or petitioners seek an appropriate writ in the nature of certiorari to call up and quash the proceedings started against him or them under Sections 3, 4 and 5 of the Bihar Land Encroachment Act, 1950, (Bihar Act XXXI of 1950) for unauthorised occupation ol certain plots, which belonged to the Government of India, one of the opposite party to these applications, and are meant for the purpose of the airfield at Ranchi,
3. They have further asked to quash the order dated 4-8-1933, of the Deputy Commissioner, Ranchi, (Annexure A), the order dated 2-3-1956, of the Commissioner, Chota Nagpur Division, (Annexure B), and the order dated 29-6-1956, of the Board of Revenue (Annexure C) to the applications of the petitioners.
4. The petitioner in Case No. 775 has further prayed for a writ in the nature of prohibition restraining opposite party 1, who is the Government of India through the Aerodrome Officer, Ranchi; opposite party 2, the Deputy Commissioner, Ranchi and, opposite party 3, the Commissioner, Chota Nagpur Division, Ranchi, from interfering with the possession of opposite party 4 to 6. Opposite party 4 is petitioner in Case 645 and opposite parties 5 and 6 are petitioners in Case 701.
5. The Government of India through the Aerodrome Officer, Ranchi, opposite party, started a proceeding before the Deputy Commissioner. Ranchi. under Sections 3, 4 and 5 of the Bihar Land Encroachment Act, 1950, against the petitioners of all the three cases, for unauthorised occupation of certain plots, which, according to it were the property of the Government of India and were meant for the air-field at Ranchi having been acquired for that purpose under the Defence of India Rules during the years 1939 to 1944.
6. The Deputy Commissioner, opposite party, held that the disputed lands were the acquired property or the Government of India, and, therefore, all the petitioners before this Court were liable to be summarily ejected and were also liable to pay assessment under Section 3 and additional assessment by way of penalty under Section 4 of the Act. The Deputy Commissioner, accordingly, on 4-8-1953. passed an order evicting the petitioners and directing them to pay the assessment for three years under Section 3 of the Act and further to pay a penalty equal to ten times the annual assessment under Section 4 of the Act.
7. Against the aforesaid order, the petitioners of Cases 645 and 701 appealed to the Commissioner, Chota Nagpur Division, opposite party, who heard both the appeals together and by an order dated 2-3-1956, modified the order of the Deputy Commissioner by direction that the penalty will be imposed at three times the annual assessment and that the assessment be made for two years only, and in other respects he confirmed the order of the Deputy Commissioner.
8. Against the order of the Commissioner, three applications in revision were made to the Board of Revenue by the three sets of the petitioners before this Court, and, all the three revisional applications were heard together by the Member, Board ol Revenue, who on 29-6-1956, after hearing the parties, did not think fit to admit them.
9. Against the above mentioned orders, the three sets of petitioners filed applications under Articles 226 and 227 of the Constitution before the High Court on which a rule in each of the three cases was issued by this Court against the aforesaid opposite party to show cause why the impugned orders, just mentioned, should not be quashed. Cause has been shown by Mr. Ray Paras Nath, Government Pleader, on behalf of opposite party.
10. In case 775, the case of the petitioner, Chotanagpur Banking Assocation, is that it owned 453 acres of land in one block in villages Hinoo, Hundru, Hetu and Kalyanpur, under Sadar Thana at Ranchi. Government acquired in all 254.70 acres of land, out of these lands, under Land Acquisition Act out of which 251.70 acres were acquired for construction of an aerodrome at Ranchi. A further area of 18.86 acres was acquired under the Defence of India Act. Out of the remaining 179.44 Acres, 141.81 Acres were requisitioned by the Government under the Defence of India Act, and, the remaining 37.63 Acres remained in Khas possession of the Bank petitioner as owner and occupier thereof.
The further case of the Bank is that out of these 37.63 Acres, which were in its Khas possession, it sold, on 17-6-1952, a portion of plot 340 in village Hetu, by a registered sale deed, to the father of the petitioner, Radha Krishna Prasad Sahu, petitioner in case 645; and, on 16-2-1952, by three registered sale deeds, some lands out of the other lands in their Khas possession, to Pasu-pati Paul end Srimati Nanda Rani Paul, petitioners in Case 701.
11. In case 645, the case of the petitioner, Radha Kishun Prasad Sahu is that the lands in dispute were requisitioned, no doubt, under Rule 75A of the Defence of India Rules, but on the expiry of the Defence of India Rules in 1951, the ownership of these lands reverted to the Bank, which, in its turn, sold them to the different persons mentioned above, who came in possession thereof since the date of their purchase.
The petitioner's further case was that he did not own, nor had he any concern with plots 1270, 1271 and 1272 of village Hundru and plot No. 340 of village Hetu, which were the subject matter of the proceeding under Sections 3, 4 and 5 of the Act, against him, as he neither purchased them nor ha is in possession of the same. His case was that only a portion of plot No. 340 measuring 87 Acres was purchased by his father, Hari Prasad Sahu, who was separate from him, and, who was alive, and, therefore, the proceeding started against the petitioner was without jurisdiction.
12. In case 701, the petitioners, Pasupati Paul and Srimati Nand Rani Paul, admitted that they had purchased the plots, which were the subject-matter of the proceeding against them, from the Bank, but they maintained that the Bank wag the owner and in peaceful possession of these properties, and, therefore, the lands purchased by them were not "public" property ''within the meaning of Section 2(ii) of the Act, and, as such, the proceeding started against them was illegal and without jurisdiction.
13. The Commissioner, Chotanagpur Division, opposite party, who heard the appeals against the order of the Deputy Commissioner, held that the lands, which were the subject matter of the proceeding under the Act, against these petitioners, had been acquired by the Government of India under the Defence of India Rules before the Bank sold these Jands to the petitioners of case 701, and, to the father of the petitioner of case 645. He, therefore, held that these plots in dispute fell within the definition of public property as defined in Section 2(ii)(a) of the Act, which was applicable to the present case, and, therefore, the petitioners were liable to be evicted, and, as such, the proceeding for their eviction started under the Act was perfectly valid.
14. The Board of Revenue accepted the above finding, and, held that, after acquisition, the Bank, from whom the petitioners claimed to have derived the title, had no title to convey to them, and, as such, they had acquired no right to retain possession of those properties. He, therefore, summarily rejected the three applications in revision filed by the present petitioners.
15. Mr. R. S. Chatterji, who appeared for the Chotanagpur Banking Association, the petitioner in Case 775, attacked the validity of the just mentioned orders (Annexures A, B and, C) on two main grounds:
(1) That Section 2(ii)(a) of the Act did not apply to the present case, as wrongly held by the learned Commissioner, and, therefore, the impugned orders were without jurisdiction, and, (2) That even Clauses (b) to (f) of Sub-section (ii) of Section 2 did not cover the present case, and therefore, the lands in dispute were not 'public property' within the meaning of Section 2(ii) of the Act so as to attract the application of the Act here, and, as such, the proceeding started against the petitioners of all the three cases was ultra vires and without jurisdiction.
16. The first contention of Mr. Chatterji that Section 2(ii)(a) of the Act did not apply to the present case is correct, and, therefore, it must be accepted. But. even then, simply because Section 2(ii)(a) did not apply to the present case, it would not mean that no other clause of Section 2(ii) would cover the present case. The second contention of Mr. Chatterji, therefore, that the other Clauses (b) to (f) of Section 2(ii) would also not govern the present case is not correct. It is true that Clauses (b), (c), (d) and (f) of Section 2(ii) would not cover the present case, but the facts of the case clearly come within the mischief of clause (e) of Section 2(ii) of the Act. I would, therefore, consider the argument of Mr. Chatterji based on clause (e) of Section 2(ii) of the Act. for which purpose it is necessary at this stage to read Section 2(ii) (e) of the Act.
17. Section 2(ii)(e) reads thus:
"2. In this Act, unless there is anything repugnant in the subject or context.
XXX
(ii) 'public property' means--
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(e) land in possession of Government or any local authority or a Railway Company obtained, by way of. transfer or otherwise; and XX XX XX
18. The argument, pressed on our attention by Mr. Chatterji, was that the words "or otherwise" must be read ejusdem generis or analogous to the preceding specific words "by way of transfer" and, therefore, as a transfer, inter vivos, or by act of the parties, is contemplated by the earlier words just quoted, the general words "or otherwise" would also mean a similar transfer, and, as such, these latter general terms do not include an acquisition under the Defence of India Rules.
In this connection, he relied on a passage at page 337 of Maxwell on the Interpretation of Statutes, Tenth Edition, which runs thus :
"But the general word which follows particular and specified words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words. In other words, it is to be read as comprehending only things of the same kind as those designated by them, unless, of course, there be something to show that a wider sense was intended, as, for instance, as proviso specifically excepting certain classes clearly not within the suggested genus."
19. In the same book at page 338, however, it is mentioned that:
"Unless there is a genus or category there is no room for the application of the ejusdem generis doctrine."
20. There is no doubt that the word "or" in "or otherwise'' is a disjunctive that marks an alternative which generally corresponds to the word "either". Where general words follow the designation of particular things, or classes of persons or subjects, the general words will usually be construed to include only those persons or things of the same class or general nature as those specifically enumerated. This is the rule known as "ejusdem generis", and it is founded upon the idea that if the legislature intended the general words to be used in an unrestricted sense, the particular classes would not have 'been mentioned. It is specially applicable to penal statutes.
But under no circumstances, and regardless of the type of statute involved, must the rule be used where the language of the statute under consideration is plain and there is no uncertainty. Its use is permissible only as an aid to the Court in its attempt to ascertain the intent of the law makers. Nor will it to be proper for the Court to follow the rule where to do so will defeat or impair the plain purpose of the legislature. It cannot be employed to restrict the operation of an Act within narrower limits than was intended by the lawmakers.
Nor is the rule to be applied where specific words enumerate subjects which greatly differ from each other, or where the specific words exhaust all the objects of the class mentioned. Under these circumstances, the general words must have a different meaning from that of the specific words or be meaningless; See Crawford, The Construction. of Statutes, 1940 Edition, pages 326-28.
21. It should be remembered that the rule of construction, which is called the ejusdem generis doctrine, or sometimes the doctrine 'noscitur a sociis". which is that, where general wards immediately follow or are closely associated with specific words, their meaning must be limited by reference to the 'preceding words' is one which ought to be applied with great caution; because it implies a departure from the natural meaning of words, in order to give them a meaning which may or may not have been the intention of the legislature: Smelting Co. of Australia, Ltd. v. Commr. of Inland Revenue, (1897) 1 QB 175 at p. 182 (A).
22. The principle, which should govern such a case, in my opinion, has been clearly set out in Randall on Cardinal Rules of Legal Interpretation, Third Edition, at page 355. They are in these words :
"General words in a statute are prima facie to be taken in their usual sense.
General words following specific words in a statute are prima facie to be taken in their general sense unless the reasonable interpretation of the statute requires them to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before.
If the particular words exhaust the whole genus the general word must refer to some larger genus."
23. One of the safest guides to the construction of such sweeping general words is to find out the intention of the legislature in using such general words, when it is difficult to apply them in their literal sense and to hold them to be limited to alia similia. As observed by Hawkins, J. in Hawke V. Dunn, (1897) 1 QB 579, at p. 586 (B) :
"I, of course, recognise the usual rule observed in the construction of Acts of Parliament, that general, following specific, words should, be limited to things ejusdem generis with those before enumerated; but this rule of construction must be controlled by another equally general one, that Acts of Parliament ought, like wills or other documents, to be construed so as to carry out the object sought to be accomplished by them so far as it can be collected from the language employed."
24. The question when the rule of ejusdem generis is to be applied with reference to the words "Or otherwise" came up for determination recently before the Supreme Court in Lila Vati Bai v. State of Bombay, (S) AIR 1957 SC 521 (C). Their Lordships were considering the constitutionality of the Bombay Land Requisition Act (Act XXXIII), 1948. Explanation (a) to Section 6 of the Act contained the words (omitting other words not necessary) "premises which are in the occupation of the landlord, the tenant or the sub-tenant, as the case may be, shall be deemed to become vacant when such landlord ceases to be in occupation......upon termination of his tenancy, eviction, or assignment or- transfer in any other manner of his interest in the promises 'or otherwise' (underlined (here in ' ') by me)".
The argument presented there was that in that case admittedly there was no termination, eviction, assignment or transfer, and that the words "or otherwise" must be construed as ejusdem generis with the words immediately preceding them. This argument, which was pressed as an off-shoot of the main argument, was ejected by their Lordships. In delivering the unanimous opinion of the Court his Lordship Sinha, J. observed :
"In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The Legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words "or otherwise". Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking, a tenant's occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenant's interest. But the Legislature, when it used the words "or otherwise" apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenant's occupation has ceased as a result of trespass by a third party.
The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense. NO decided case of any Court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our notice."
His Lordship proceeding further referred, by way of illustration, the case of Skinner & Co. v. Shew and Co. (1893) 1 Ch 413 (D), and observed:
"The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense, that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes the duty of the Courts to give these words their plain and ordinary meaning. In our opinion, in the context of the object and the mischief of the enactment there is no room for the application of the rule of ejusdem generis. Hence it follows that the vacancy as declared by the order impugned in this case, even though it may not be covered by the specific words used, is certainly covered by the legal import of the words "or otherwise"."
In my judgment, therefore, the rule of ejusdem generis pressed in aid of his argument by Mr. Chatterji cannot be applied here.
25. In the present case, there is no doubt that if the ejusdem generis doctrine is applied, it would impily a departure from the natural meaning of words in order to give them a meaning which may or may not have been the intention of the Legislature. If the intention of the Legislature would have been to include in the words "or otherwise" the same kind of transfer which is contemplated by the earlier words "by way o±" transfer", there was no necessity of using the general words "or otherwise", in that, the earlier specific words "by way of transfer" were wide enough to include all kinds of transfers. An interpretation of the general words "or otherwise", limiting them to the matters and things of the same kind as the previous words would make the general words "or otherwise" following the pre ceding specific words, redundant In my opinion, therefore, the proper construction to be applied to the present case is to construe the general words "or otherwise" in such a way as to carry out the object sought to he accomplished by them, so, far as it can be collected from the language employed. The Legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding words. The Legislature, in our opinion, intended to cover all possible cases of transfers, which were not transfers inter vivos or by act of parties. Hence, far from iising those words ejusdem generis with the preceding words, the Legislature used those words in an all inclusive sense to bar all avenues of escape. These words "or otherwise", are, therefore, not words of limitation, but of extension so as to cover all possible ways in which title may vest in the land in the unauthorised occupation of the person concerned.
26. An acquisition under Rule 75A(3) of the Defence of India Rules is not a transfer in the strict sense, properly speaking but such an acquisition by operation of law amounts to a statutory transfer which would be a transfer in the wider sense, although not a transfer in the narrower sense so as to come under the Transfer of Property Act. It follows, therefore, that such a statutory transfer is one of such legal transfers which was certainly covered by the legal import of the words "or otherwise", and, which was obviously in contemplation of the Legislature in providing the general words "or otherwise", after the preceding specific words "by way of transfer", in Section 2 (ii)(e) of the Bihar Land Encroachment Act, 1950, even though such a statutory transfer may not be covered by the specific words used.
27. In this connection, Mr. Chatterji relied strongly on a Special Bench decision of this Court in Brij Bhukhan v. State, ILR 33 Pat 690: ((S) AIR 1955 Pat 1)(E), where at p. 830 (of ILR): (at P. 40 of AIR), the earlier Full Bench decision of this Court in Bagaram Tuloule v. State of Bihar, ILR 29 Pat 493: (AIR 1950 Pat 387) (F), is quoted, and. where it was held that the words "for any other purpose" most be read ejusdem generis which is the ordinary principle of construction.
But, in my opinion, the construction put on the words "for any other purpose" in the context of that statute can be no aid for construing the words "or otherwise", because the mention of the word "purpose" in the words "for any other purpose'' makes a lot of difference, and, it does not convey the use of the words in the general sense, but in the specific sense that the "purpose" must be read ejusdem generis with the specific purposes mentioned earlier in the statute.
28. He also relied on Brigade Commander, Meerut Sub-Area v. Ganga Prasad 1956 All LJ 251: ((S) AIR 1956 All 5071 (G), but this case also has no application, because there as well, there was no question of construction of general words like "or otherwise" and, therefore, this case can be of no assistance to Mr. Chatterji.
29. In my judgment, therefore, in view of the above pronouncement of the Supreme Court In similar circumstances, it must be held that an acquisition under the Defence of India Rules by the Government of India which is a statutory transfer or a transfer by operation of law would come within the pun-view and scope of the words "public property" mentioned In Section 2(ii) (e) of the Bihar Land Encroachment Act, 1950. The contention of Mr. Chatterji, therefore, that the lands, which were acquired by the Government under the Defence of India Rules, were not "public property" within the meaning of even Section 2(ii)(e) of the Act must be rejected.
30. At one stage, it was argued that the lands had been acquired under the Land Acquisition Act and not under the Defence of India Rules, and, that they were subsequently only requisitioned) under the Defence of India Rules. But this contention cannot be accepted as correct, because on the judgment of the Commissioner, it is quite clear that the disputed lands, which are the subject-matter of the three applications before this Court, were acquired under the Defence of India Rules-and possession of the same was taken by the Government, and, therefore, the cases have to be decided on the footing that the disputed lands were acquired by the Government under the Defence of India Rules.
31. It was then contended that even if that be so, that will not give any title to the Government, and, therefore after the expiry of the Defence of India Rules in 1951, the lands must be deemed to revert back to the Bank, and, therefore, the Bank had legal title in 1952 to transfer these lands to the other petitioners.
32. For determination of the correctness of this argument, it is necessary to read Rule 75A of the Defence of India Rules, made under the Defence of India Act, (Act XXXV of 1939). The relevant portions of Rule 75A are in these terms :
"75A. (1) If in the opinion of the Central Government or the Provincial Government it is necessary or expedient so to do for securing the defence of British India, 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, that Government may by order in writing requisition any property, moveable or immoveable, and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning :
Provided that no property used for the purpose of religious worship and no such property as is referred to in Rule 66 or in Rule 72 shall be requisitioned under this rule.
(2) Where the Central Government or the Provincial Government has requisitioned any property under Sub-rule (1), that Government may use or deal with the property in such manner as may appear to it to be expedient, and may acquire it by serving on the owner thereof, or where the owner is not readily traceable or the ownership is in dispute, publishing in the official gazette, a notice stating that the Central or Provincial Government, as the case may be, has decided to acquire it in pursuance of this rule.
(3) Where a notice of acquisition is served on the owner of the property or published in the official gazette under Sub-rule (2), then at the beginning of the day on which the notice is so served or published, the property shall vest in Government free from any mortgage, pledge, lien or other similar encumbrance, and the period of the requisition thereof shall end.
xx xx xx"
33. It will appear from rule 75A (3) that when a notice of acquisition is served on the owner of the property or published in the official gazette under Sub-rule (2) of Rule 75A then at the beginning of the day on which the notice is so served or published -the property shall vest in Government free from any mortgage, pledge, lien or other similar encumbrance, and the period of the requisition thereof shall end. It is, therefore, clear from Rule 75A that the Government has been given the power to requisition any property under Sub-rule (1) of Rule 75A of the Defence of India Rules, and, it has further been empowered to acquire the requisitioned property, if it so desires, in pursuance of Rule 75A, and, when the Government intends to acquire such a requisitioned property, a notice of such requisition has to be served under Rule 75A(2) (B). When one such notice is served or published as required by Rule 75A(2) (B), the property, which was previously requisitioned, and, which has been subsequently acquired under Rule 75A(2), vests in Government free from all encumbrances; and on the day when the notice of acquisition is so served, the period of the requisition ends.
On the true construction of Rule 75-A (3), therefore, there is no doubt that by acquiring immovable property under Rule 75A (3), the Government gets absolute title to the properly so acquired and, no title thereafter is left in the owner thereof, which can be transferred by him subsequent to such acquisition under RULE 75A (3). There is no provision in the Defence of India Act, or in the Defence of India Rules which provides that on such acquisition of the requisitioned property it will vest in the Government temporarily until the Defence of India Rules is in force, and, that after the expiry of the Defence of India Rules, the title of the Government to such an acquired property will end and such property will revert to the owner thereof,
34. In this context a reference may be made to the decision of the Supreme Court in Fruit & Vegetable Merchants Union v Delhi Improvement Trust, (S) AIR 1957 SC 344 (H). His Lordship Sinha J., who pronounced the unanimous opinion of the Court, observed: "That the word "vest" is a word of variable import is shown by provisions of Indian Statutes also". But his Lordship, while considering Sections 16 and 17 of the Land Acquisition Act (Act I of 1894), observed :
"On the other hand, Sections 16 and 17 of the Land Acquisition Act (Act I of 1894), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the case contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration It would thus appear that the word "vest" has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation."
35. Here, in Rule 75A (3) of the Defence of India Rules, we have similar words "the property shall vest in Government free From any mortgage, pledge, lien or other similar encumbrance" like the words "vest absolutely in the Government free from all encumbrances" occurring in Sections 16 and 17 of the Land Acquisition Act.
The use of the word ''absolutely'' in Sections 16 and 17 of the Land Acquisition Act, and the absence of this word in Rule 75A (3) will not make any difference, in that, the word "absolutely'' only makes the intention of the Legislature more emphatic, and nothing more. It has been used only as abundang cautela as an abundant caution, in that Abundans Cautela Non Nocet, that is, excess of caution does no harm. The words "the property shall vest in Government free from any mortgage, pledge, lien, or other similar encumbrance" alone are clear manifestations of the intention of the Legislature that the vesting of the property is not for any limited purpose or limited duration.
The property acquired by Government under Rule 75A (3) becomes its property without any conditions or limitations either to title or possession. It is true that the word "vested" has not got a fixed connotation, but in the instant case it has been used in a definite sense that the property acquired by the Government becomes its property, and it vests in it in title and possession both absolutely, and no title whatever thereafter is left in the ex-owner of the land acquired.
36. In my judgment, therefore, the contention of Mr. Chatterji, that, by acquiring, the Government does not get title to the acquired property, or, that after the expiry of the Defence of India Rules in December, 1951, the disputed lands acquired by the Government under the Defence of India Rules reverted back to the owner, cannot in law be accepted to be correct.
37. It was also contended that if the Government acquired these lands, compensation has to be paid to the owner of such property. This argument assumes the compensation has not been paid, but it is not so.
38. Section 19 of the Defence of India Act, 1939, provides that compensation shall be paid to the owner of the property which is acquired in accordance with certain principles for compulsory acquisition of immovable property, etc. The relevant portion of Section 19, for our purpose, is Section 19 (1) (e), which is to the following effect :
"19. (1) 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:--
XX XX XX
(e) The arbitrator in making his award shall have regard to (1) the provisions of Sub-section (1) of Section 23 of the Land Acquisition Act 1894, so far as the same can be made applicable; and
(ii) whether the acquisition is of a permanent or temporary character.
XX XX XX"
39. On reading Section 19 (1) (a) of the Defence of India Act it is clear enough that if the amount of compensation cannot be fixed by agreement, the Central Government must appoint an arbitrator for assessing the compensation, and, such an arbitrator is required under Section 19 (1) (e) (i) that he shall have regard to the provisions of Sub-section (1). of Section 23 of the Land Acquisition Act, 1894, in so far as the same can be made applicable.
40. In such circumstances, it cannot be said that the disputed lands were acquired without payment of any compensation to the owner of the disputed lands. It is not the case of any party that when the disputed lands were acquired by the Government under Rule 75-A (3) no compensation was paid to the Bank which was the owner of the property. It cannot, therefore, be assumed that the disputed lands were acquired by the Government without paying any compensation to the owner or without following the procedure laid down in Section 19 of the Defence of India Act.
The learned Commissioner, however, has in his order, said that there could be no doubt whatsoever that the plots in dispute have been acquired and compensation paid for. The contention of Mr. Chatterji based on this ground also must, therefore, be overruled.
41. An attempt was made to challenge the amount of assessment made under Section 3 of the Bihar Land Encroachment Act, 1950, but this question is not open to challenge, because if the Act applied, it gave Jurisdiction to the Deputy Commissioner or to the other authorities under the Act to make assessment under Section 3 of the Act, for the payment of which the person, who unauthorisedly occupies any land which is "public property", -has to pay.
Section 4 of the Act also makes such a person liable to pay by way of penalty a sum not exceeding ten times such assessment. In the present case, it is clear from the orders impugned that the assessment had been made in the manner laid down in Section 23 of the Land Acquisition Act. The learned Commissioner, on appeal, modified the amount of penalty from ten times to three times and limited the assessment to two years. Therefore, the order, regarding the amount of assessment or the amount of penalty, having been passed by a competent authority under the Act and as provided by the Act, is not open to a challenge on the ground of hardship or the like.
42. Mr. S.B. Sanyal, who appeared for the purchasers, who are the petitioners in cases 645 and 701. adopted the argument of Mr. Chatterji. But, in view of my decision that the Bank, which is petitioner in case 775, had no title left in the disputed lands, after they had been acquired in. view of the provisions of Rule 75A (3) of the Defence of India Rules, the Bank had no right or title left in the disputed lands which it could transfer to the petitioners of cases 645 and 701 subsequently, and, therefore, by their purchase in 1952 after the title of the Bank had been extinguished by operation of law under Rule 75A (3) of the Defence of India Rules, the purchasers did not acquire any right or title to the disputed land by their purchase, because their vendor had no right or title in it to convey.
43. For the reasons given above, in my judgment, there is no merit in these applications and accordingly they must be dismissed with costs.
44. In the result, the rules are discharged, as no case has been made out in any case for Issuing any writ against the opposite party. Each of the petitioners will, therefore, pay Rs. 100/- as costs to the opposite party. The Government of India through the Aerodrome Officer, Ranchi.
Ramaswami, C.J.
45. I agree.