- (1.) THIS appeal arises against an award passed by Sri K. N. Bhattacharya, Arbitrator, Nadia, in Arbitration Case No. 9 of 1956 dated 25th September, 1959. The award was passed on a reference to arbitration under Act XXX of 1952 Requisitioning and Acquisition of Immovable property Act, in respect of 155. 07 acres of land from Mouza Raghunathpur J. L No. 82 P. S. Chakdah, District Nadia requisitioned by the State of West Bengal on behalf of the Central Government under sub Rule (i) of Rule 75a of the Defence of India Rules on 24. 4. 45 and subsequently acquired on 3. 3. 45 for the Kalyani Project. According to the claimants 184. 93 acres of land of mouza Raghunathpur was requisitioned on 24. 4. 45 and that out of such requisitioned land 29. 86 acres of land was de requisitioned on 11. 9. 47 and the remaining 155. 07 acres of land was acquired on 3. 3. 49. in view of the withdrawal of the claims by the tenants in favour of the claimants in respect of 3. 78 acres of bastu land from the acquired land there is difference of 30 acres of land as stated by the claimants and as admitted by the opposite party. Such acquired lands comprise of mal bagan and bastu land and also tanks and banks of tanks. According to the claimants the compensation offered to them by the learned Land Acquisition Collector was grossly inadequate and unfair and they press their claim for enhanced valuation in respect of such acquired land. They further dispute the numbers and varieties of the trees which stood over such acquired lands and pray for enhanced valuation for trees and press for compensation for bamboos and barbed wire fencing. The learned Judge allowed the claims of the petitioners to a certain extent and passed an award as 69 mentioned above. Being aggrieved by the aforesaid award, the State of West Bengal has preferred the present appeal. The petitioners have also filed a cross objection as some of their claims were negative by the learned Arbitrator.
(2.) MR. Amar Nath Banerji, learned Advocate appearing on. behalf of the State raises several objections specially regarding the land value assessed by the learned Arbitrator. He also attacks the award on the ground that value of the tanks has been assessed at a higher rate. With regard to the valuation awarded by the learned Arbitrator in respect of barbed wire and bamboos, Mr. Banerji does not seriously press his objection. In the cross objection the main ground that has been taken is that section 8 (3) (b) has been struck down as ultra vires of the Constitution in a case reported in A. J. R. 1968 Supreme Court 377 ( Union of India v. Kamala bhai Harjivandas Parikh) as it was found by the Supreme Court that the section contravenes Article 31 (2) of the Constitution of India. The other grounds in the cross objection are as follows : That the land value ought to have been assessed at a higher rate. The big tank ought not to have been valued as dried up tank and no compensation has been awarded for fish in respect of the big tank. Objection has also been raised with regard to the number of different trees as found by the Arbitrator and also with regard to the valuation made in respect of those trees. The other objection with regard to the valuation as made in respect of the bamboos. Though no ground was taken in the cross objection it was argued on behalf of the respondents that the claimants are entitled to 15% additional compensation on the amount awarded by the learned Land Acquisition Collector.
(3.) MR. Banerji, to repel the argument. advanced by Mr. Roy Chowdhury, learned advocate for the respondents, that the claimants were entitled to 15% compensation, cites before us a decision, reported in A. I. R. 1974 Calcutta 180 ( Union of India v. Asit Kr. Mondal. This was a case under the Defence of India Rules. In this case, it was held as follows : "coming to the claim for solatium provided under section 23 (2) of the Land Acquisition Act, it appears that under section 19 (1) (e) the Arbitrator will have regard in determining the compensation for acquisition to the provision of sub section (1) of section 23 of the said Act. The Defence of India Act and its Roles do not mention anything about sub-clause (2) of Section 23 in determining such compensation. In view of the fact that long before the Constitution came into force the acquisition was complete, it cannot be said that the absence of provision for solatium in the statute is in any way unlawful or contrary to the provisions of the Constitution which had no application. Accordingly we reject the claim for solatium made in respect of the compensation in all the appeals. " Mr. Banerji also refers to a recent decision, reported in A. I. R. 1979 Calcutta 230-83 C. W. N. 426 ( Union of India v. Deben Adhikari ). This was also a case under the Defence of India Act. It was held in this case that : "there is no provision in the Act for grant of any statutory allowance of 15/ solatium Section 23 (2) of the Land Acquisition Act cannot be imported into Section 19 of the Defence of India Act. thus, the arbitrator was justified in now awarding solatium of 15/ -. On the analogy of the provision of Defence of India Act, it is submitted by Mr. Banerji that in the present Act also there is no provision for additional compensation and as such Section 23 (2) of the Land Acquisition Act cannot be attracted. We, therefore on the basis of the decision referred to above and also considering the fact that there is no provision for additional compensation in the present Act. negative the contention raised by Mr. Roy Chowdhury, learned advocate for the respondents. ";