Amaresh Roy, J. - (1.) THIS appeal has been preferred by Union of India under Sec. 19 sub -section (1) (i) of the Defence of India Act, 1939, and is directed against an award dated 10th September, 1960, made by an Arbitrator appointed under clause (b) of subsection (1) of Sec. 19 of the Defence of India Act, 1939 read with sub -section (4) of Sec. 1 of that Act and Sec. 6 of the General Clauses Act X of 1897 by the Government of West Bengal in exercise of the powers conferred by Notification No. 1365 -OR -42 dated 19th September, 1942 issued by Government of India, Defence Department. There is also a cross -objection preferred by the Respondent in the appeal under Rule 22 Order 41 of the Code of Civil Procedure. The Arbitrator was appointed for disposing of the Reference above -mentioned by determination of compensation payable in respect of a requisition of properties by Order No. 64 dated 8th June, 1843, made under Rule 75 of the Defence of India Rules, 1939. The property consisted of lands, buildings and other materials on that land in mouza Brindabanpur, J.L. No. 75 within Kanksa Police Station in the District of Burdwan. The purpose of that requisition as it appears in the order of requisition was "for securing the defence of British India, the 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". It also appears from that Order No. 64 D.I. dated 8th June, 1943 that the requisition of that property was in connection with setting up Birudia landing ground for use of aircrafts. It may be mentioned that here it was the admitted case of the parties before the Arbitrator and also at all stages of the proceedings that construction work of that air -field on the land stated in October, 1942 when even before any formal letter of requisition was issued or any order of requisition was made, the military authorities occupied the land and the building standing thereon, including all furnitures and fixtures and other properties thereon by turning out the occupants. No inventory of the movable properties or of any thing at all was made either at the time when possession of the properties was so taken or long years thereafter.
(2.) IN June, 1943 on receipt of a letter of requisition from Major James F. Hyland, Base Engineer (Air) the Land Acquisition Officer issued the Requisition Order No. 64 D. I of 1943 -44 copies thereof were sent to Ex -Engineer, AV. Dn. and others and was directed to be served on interested persons and in the locality. The manner of service that was effected appears from Ext. 1 in the case in which the report of service says that 'not having found Nirode Kanta Sen present, his employee Jaladhar Das was asked to receive the notice but he refused to accept the same and put his signatures hence a copy was served by hanging on the front door of the kutchary house'. That service report is dated the 16th of June, 1943 and order -sheet in the land acquisition proceeding shows that it was received on 17th of June, 1943 and was filed with the records. Nothing further was done in that respect and next step in the land acquisition proceeding was taken by preparing schedule of properties in the locality. Nirode Kanta Sen filed his first claim on 22nd April, 1943, claiming Rs. 1,93,4321 up to that date. He followed it up by another on 6th of December, 1943 laying his claim at Rs. 2.49,914/ -as compensation recurring and nonrecurring on various accounts regarding movable and immovable properties lying within the requisitioned area.
(3.) IN the land acquisition proceeding the Collector made an offer of fair compensation by assessing recurring crop compensation at a total sum of Rs. 11,878.8 annas. That was disputed by claimant Nirode Kanta Sen. He asked to be informed about the basis of calculation on which the Collector had assessed flat compensation. But he was not given that information on failure of any agreement as to the amount of compensation there was an application made by Nirode Kanta Sen on 27.3.57 (in which claim petitions previously made were also annexed) for a reference to arbitration and thereupon the Reference Order we have mentioned above was made in August, 1957. The learned Arbitrator who has heard and disposed of the Reference was Sri A. K. Das District Judge, Burdwan. He was vested with the powers of the Arbitrator in the case by Government order No. 11042 Reqn. dated 1st June, 1959 and in that arbitration proceeding claim was made on behalf of the heirs of Nirode Kanta Sen, (who had in the meantime died) by reiterating the claims made on 22.4.1943 and 6.12.43 which were on record of the Reference received by the Arbitrator. On behalf of the Collector of Burdwan a statement of fair amount of compensation was also filed before the Arbitrator in February, 1959 reiterating that crop compensation from 1349 to 1359 B. S. assessed at Rs. 844 -7 -0 and compensation for jungle land from 1349 to 1359 assessed at Rs. 3437 -1 -0 total amounting to Rs. ,11,878 -8 -0 was fair compensation. In that statement it was also stated that (a) fair compensation for 1360 for culturable danga, Baid and Tank is Rs. 1356 -4 -0 out of which share of Shri N. K. Sen is Rs. 740 -6 -0. (b) Fair compensation for cultural danga, Baid and Tank is Rs. 1122 out of which share of Shri N. K. Sen is Rs. 640.4.0. (c) Fair compensation for jungle land from 1355 to 1361 will be Rs. 2103 -8 -0 pleas were raised. (a).... that claimant having accepted payment without any objection the matter cannot be reagitated under the law. (b) From 1362 B. S, all properties having vested in the State under Estates Acquisition Act, the claimants are not entitled to any compensation except what is payable under that Act. The claimants Hiranmayee Debi, widow of late Nirode Kanta Sen and two sons of Nirode Babu, Nihar Kanta Sen and Nirmal Kanta Sen claimed that they have Patni right in respect of eight annas and twelve annas shares under Lalit Mohan Sinha Roy and Manilal Sinha Roy respectively in mouza Brindabanpur. Those documents of title are Exts. 6 and 6 (a) in the case and they show that by a deed of lease executed by Lalit Mohan Sinha Roy in favour of the predecessor -in -interest of Nirode Kanta Sen eight annas share of Touzi No. 33 lot Bahadur of the collectorate of Hooghly district at an annual rent of Rs. 75 on receiving a selami of Rs. 225/ -. In that deed of lease in respect of the Putni Taluk which is Ext. 6 in the case clauses 5 and 6 recite. (5) I settle separate rent with you for taking grants ordinary stone -chip and white yellow and red earth etc. fit for the manufacture of bricks, tiles and potteries etc. that are there. (6) Whatever compensation that maybe awarded for the land that may be acquired within aforesaid Mahal, either by the Government or by any company authorised by the Government, out of the same I will get 10 annas share and you will get the remaining 6 as. share and you will get proportionate abatement of rent for the land thus acquired. By the other document the said Kadarpanath Mondal, predecessor -in -interest of Nirode Kanta Sen took lease in respect of the underground deposits of gravel etc. by the registered deed dated 17th January, 1922 which is ext. 6(a) in this case. By that document the grant of Raja Manilal Sinha Roy who was the owner of eight annas share in the Sand Mouza Brindabanpur gave a settlement "to take all those gravels, stone -chips, chalk deposits, white, yellow and red ochres that are the under and surface for purpose of manufacturing bricks tiles a selami of Rs. 951. That document gives a right 'to raise and sell the gravels, and stones as aforesaid and having raised the ochres from different plots as aforesaid to manufacture bricks, tiles potteries etc. by setting up mills and factories and sell the same'. In this document however, there is no reservation of the nature as appears in clause (6) of the other document (Ext. 6P) which we have quoted above. The claim also averred that Nirode Kanta Sen has built a homestead and also a Kutchary on a portion of that land. The building was one -storied three roomed bungalow with brick -built and cemented floor and brickwalls with a thatched roof in which there were furnitures of some value. Appertaining to that house was also a kitchen, a cowshed and a garage and a boundary wall and two wells. Nirode Babu used to live in that house sometimes with his family. On some occasions he had taken visitors of high status for entertaining them there as guests. Nirode Babu also intended to build a farm house on that land and a factory for the purpose of development in the business of manufacture of bricks and tiles from the sub -soil clay which were of very good quality. He also extracted gravel from underground and used to sell them. A considerable quantity of gravel so extracted was kept on the land at. the time when possession was suddenly taken by the military authorities as mentioned above. At that time the materials that had also been collected for building the factory house were lying on the land. Moreover, the entire land had Sal trees which are valuable timber and forest which yield fuel wood. Nirode Babu used to sell Sal, Murgas as timber and also used to sell fuel wood as product of that forest. Compensation as claimed under the headings : (1) Culturable land including land cultivated after reclamation; (2) Trees -timber wood and fuel; (3) Homestead including building and fixtures; (4) Furniture and other overables within the homestead areas; (5) Morrums excavated from the land and other underground deposits. In the order of fair compensation made by the collector compensations were calculated under the heads - - Homestead area -culturable lands of the categories danga and baid, tank, sal jungle. But nothing was awarded for the furnitures, fixtures and other movable properties and nothing at all for the underground deposits of Morrums, clay, etc. After that assessment of the compensation by the collector of Burdwan offers for crop compensation were made to the claimant and pursuant to that offer the claimant on two occasions received amounts, totalling to Rs. 11,878.8 annas first of these being receipt of Rs. 7,049 -15 annas on 4th March, 1948 without noting any objection and the second such payment being on 25th of April, 1954 of Rs. 4,828.9 annas on which occasion payment was received by making a note, that it was, without prejudice to the claim. The consolidated voucher for these payments which is ext. '0' shows that 11.878.8 annas was assessed under two heads (1) crop compensation for the years 1349 to 1359 and (2) jungle compensation for 1349 to 1354 only.;