The State of Punjab vs Bakshi Ram and others

Shamsher Bahadur, J.—The single point for determination in this appeal concerns the competence of the State Government to acquire the suit property, and in order to examine the validity of this objection which was raised and accepted at a very late stage by the learned District Judge of Ambala, it is necessary to set out the history of this acquisition right from the beginning.

An area of land measuring 161 bighas and 7 biswas, that is, about 33.61 acres belonging to the Respondents in village Chuharpur of Kharar Tehsil in Ambala district, was included in the notification for its requisition under Sub-section (1) of Section 3 of the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953 (Punjab Act No. XI of 1953). The essential requirement of this provision is that where the competent authority is of opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the State, and that the property should be requisitioned, the owner may be called upon to show cause within 15 days why the property should not be requisitioned. The notification was issued by the Estate Officer, who is the competent authority, on 8th of September. 1954, and it was stated that the land was needed for the public purpose of "Government Aerodrome Chandigarh," which was described as a purpose of the State. In course of time this notification was followed by a notice issued to the owners under Sub-section (2) of Section 3 on 29th of October, 1954. The land requisitioned was taken possession of u/s 4. Section 7 authorises the State Government to acquire the requisitioned property for a purpose at any lime by publication in the official Gazette a notice to the effect that the said Government has decided to acquire the property. It is not disputed that a notice was issued u/s 7 to acquire this property on 7th of March, 1955.

After the property is acquired the question arises about the settlement of compensation and this matter is dealt with u/s 8 of the Act. It is provided that where any property is requisitioned or acquired the compensation shall in the first place be fixed in accordance with agreement and where no such agreement is possible an arbitrator is appointed by the State Government to fix the amount of compensation. It is the duty of the arbitrator under Clause (e) of Sub-section (I) of Section 8, after hearing the dispute, to "make an award determining the amount of compensation which appears to him to be just and specify he person or persons to whom such compensation shall be paid and in making the award he shall have regard to the circumstances of each case and the provisions of Sub-sections (2) and (3), so far as they are applicable Sub-sections (2) and (3) lay down the principles on which compensation is to be determined. The District and Sessions Judge of Ambala was appointed an arbitrator in pursuance of the notification of the Punjab Government of 6th of October, 1956. Mr. Hans Raj Khanna (now Khanna J. as arbitrator) made an award on 30th of July, 1957, to-the effect that the Respondent-claimants were entitled to compensation at the rate of Rs. 175/- per bigha for barani land, Rs. 202/- per bigha for abi land and Rs. 40/- per bigha for gair mumkin land, and also to compensation at the rate of Rs. 100/- per bigha for the sugar cane crop standing over 24 bighas and 11 biswas out of the land acquired. The appeal preferred to this Court from the award came for hearing before Grover J. in F. A. O. No. 148 of 1957, and by his order of 20th of May, 1959, the award of the arbitrator was set aside and remitted to him for fresh determination of compensation in accordance with law. The arbitrator was to decide whether on any particular point he required fresh evidence to be adduced. The arbitrator this time, Shri Sant Ram Garg who is now the District and Sessions Judge, Ambala, instead of re-determining the amount of compensation has held, on an objection raised on behalf of the claimants that the entire proceedings suffered from lack of jurisdiction in as much as under Sub-section (1) of Section 3 the land for the purpose of construction of an aerodrome could not be requisitioned or acquired by the State Government, the object not being a purpose "of the State". The learned arbitrator has taken note of certain correspondence which passed between the Punjab Government and the Government of India and has reached the conclusion that the acquision was made as the instance of the Central Government for a purpose which is that of the Union.

In the appeal preferred by the State Government it has been urged by Mr. Lachhman Dass Kaushal, that the arbitrator had no warrant to enter into the question regarding the validity of the notification at the stage which the case had reached when it was only required of him to re-assess the amount of compensation and to take any fresh evidence for the purpose if considered necessary. It is further urged that in any event the satisfaction of the State of Punjab that the object of requisitioning was a purpose of the State was conclusive and could not form the subject-matter of further investigation by the arbitrator whose functions are confined within the scope of Section 8 of the Act. It is admitted by the parties that the object of acquisition has long since been fulfilled, an aerodrome having been constructed on the various lands including those of the Respondent-claimants which had been requisitioned and acquired under the Act. None of the Respondents, and indeed no other claimant ever raised the objection or showed cause against the original notice issued under Sub-section (1) of Section 3. The land was requisitioned and then acquired by succeessive notifications and notices, and no objection was ever raised about the competence of the power of the Punjab Government to take over the property under the Act. When a reference was made before the District and Sessions Judge as arbitrator, there was no challenge offered to the validity of the reference and there can be no manner of doubt that if the jurisdiction of the arbitrator was in question the matter should have been raised at that time. In the appeal before Grover J. the case was argued on the merits of the award and the remission was directed only on the question of assessment. When the case came back before the District and Sessions Judge for re-determination as arbitrator under the Act, this objection was taken for the first time and it can acceptably be contended, as has been done by Mr. Kaushal, that the time for raising the objection even on the question of jurisdiction has long since passed. Support for this submission is sought on basis of the authority of the Bombay High Court of West and Nanabhai Haridas JJ. in Dattu v. Kasai I. L. R. 8 Bom. 535, holding that the objection with regard to limitation having been taken too late could not be considered after the appeal had been remanded for determination of the Plaintiff''s right of perpetual cultivation of land. The question of jurisdiction is no doubt fundamental and goes to the root of the matter and so does the question of limitation in a certain way. There is another decision of the Allahabad High Court in Chunnilal and Others Vs. Habib Ali and Others, where the Judges declined to entertain a technical plea of want of due attestation after the case had been remanded in second appeal for consideration of certain matters. In my opinion, the principle of the Bombay and Allahabad authorities lend some aid to Mr. Kaushal''s argument that the question of jurisdiction could not have been raised before the Arbitrator by the claimants after the proceedings had been remitted to him for the limited purpose of re-assessing the award. There is a further circumstance which can be taken into consideration in this case. If the objection had been taken at the proper time the State Government might have been able to establish that the purpose of the acquisition was in fact a purpose of the State and some evidence may have been called. It would be seen that two essentials are necessary before a notification can be made u/s 3 ; in the first place the acquisition should be for a public purpose, and secondly, the purpose should be one of the State. It has never been disputed that the requisitioning and acquisition had been made for a public purpose. The objection which has been greatly delayed relates only to a determination of the question whether it is a purpose of the State or of the Union.

The notification of the State Government shows that it had considered the question of construction of an aerodrome to be a "purpose of the State" and it appears to me that the scope of an arbitrator''s enquiry under the Punjab Requisitioning and Acquisition of Immovable Property Act, 1953. cannot be extended to permit him to investigate into the matter whether the object of the acquisition was in fact a purpose of the State, Mr. Kaushal has drawn my attention to a Division Bench judgment of this Court of Bishan Narain and Grover J J. in Hari Krishan Khosla Vs. State of Pepsu, in which it was held that in acquisition proceedings under the Land Acquisition Act, the Court derives its jurisdiction from the reference which is made by the Collector u/s 18 and there is no provision in the statute which enables the Court to go behind the reference and determine questions which have not been referred to it. In determining the competence of a statutory tribunal, reference has to be made to the provisions of the enactment itself and there can be no manner of doubt that what an arbitrator is required to determine is strictly set out in Section 8 of the Act. When a Court is precluded from going behind a reference made u/s 18 of the Land Acquisition Act there is hardly any ground in principle to avoid the application of this rule in the case of a reference to arbitrator u/s 8 of the Act which sets out in meticulous detail what an arbitrator is required to determine under the Act.

The argument which has appealed to the learned Arbitrator is that the "regulation and organisation of air traffic and of aerodromes" is a subject-matter of item No. 29 of the Union List and accordingly the construction of an aerodrome becomes a purpose of the Union. This line of reasoning is erroneous and ignores the possibility that the object may also constitute a purpose of the State, In The The State of Bombay Vs. Ali Gulshan, the Government of the State of Bombay had acquired certain premises "for housing a member of the staff of a foreign consulate" and it was held by their Lordships of the Supreme Court that though the subject of "diplomatic, consular and trade representation" falls in item No. 11 of the Union List the acquisition may still be for a purpose of the State. In other words, there may be circumstances in which the purposes of a State would be better served by providing accomodation to the members of the diplomatic staff. On a parity of reasoning, it might well be urged that the construction of an aerodrome in Chandigarh would be conducive to the interests of the Punjab State and the acquisition of land might reasonably constitute a purpose of the State of Punjab. As stated by Chandrasekhara Aiyar J., who delivered the judgment of the Supreme Court:-

Even if one may regard the requisition of a room for the accomodation of a member of a consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose

The acquisition of land for the construction of an aerodrome though strictly falling in item 29 of the Union List might likewise become a State purpose.

From whatever aspect this case is viewed, the order of the learned District Judge cannot possibly be sustained. This appeal would, therefore, be allowed and the proceedings would now be sent to the District Judge of Ambala as arbitrator to redetermine the assessment of the award in accordance with the directions given by Grover, J. in F.A.O. No. 148 of 1957. I would make no order as to costs.