TMI Blog1986 (9) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... . Periyar High Road (Poonamallee High Road), Kilpauk, Madras. The land along with the building standing thereon was originally requisitioned under the provisions of the Requisitioning Act for the purpose of accommodating the NCC Headquarters through the Collector of Madras. The above property was taken possession of on 9.2.1963. In order to fix the compensation for the period of five years beginning from 9.6. 1963 to 20.2.1967, an Arbitrator was appointed. The Arbitrator by his award dated 5.1.1970 fixed the compensation at ₹ 6000 per month and the compensation was being paid accordingly. At this stage it is necessary to refer to the history of the Requisitioning Act. The power to requisition and to acquire immovable property for a public purpose was first provided in the Defence of India Act, 1939 which expired on the 30th September, 1946. It was, however, found necessary to retain some of the properties for a longer period in the occupation of the Government. Therefore, it was provided in the Requisitioned Land (Continuance of Powers) Act, 1947 that any property which had been requisitioned under the Defence of India Act, 1939 would continue to remain under requisition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition of Immovable Property (Amendment) Act, 1975 (Act 11 of 1975) by which it amended the Requisitioning Act so as to extend by five years the existing maximum period for which properties could be retained under requisition and to provide for quinquennial revision of the recurring part of compensation . The property in question by virtue of the several amendments made to the Requisitioning Act continued to remain under requisition and the compensation payable in respect of it was required to be revised as provided by the Requisitioning Act as amended by Act II of 1975 for a period of five years from 7.3.1975 to 6.3.1980. As there was no agreement between the parties on the question of compensation payable for the said period the said question was referred to the Principal Judge, City Civil Court, Madras who had been appointed as the arbitrator under section 8 of the Requisitioning Act to determine the compensation payable in respect of the property in question for the said period. The learned Arbitrator by his award dated August 31, 1984 fixed the compensation payable for the property at ₹ 21,000 per month as against the claim of ₹ 77,270 per month made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst an order relating to compensation under any Act for the time being in force for the acquisition of land. The expression 'acquisition' is not defined in the Act. We will have to ascertain from the scheme of the Requisitioning Act whether an acquisition of property takes place when it is requisitioned under the relevant provisions of the Requisitioning Act. Sections 3 to 6 of the Requisitioning Act deal with the powers of the Government in respect of requisitioning of property and section 7 of that Act confers power on the Government to acquire a property which has been requisitioned. Whenever a property is requisitioned by the competent authority it is entitled to call upon the owner or any other person who may be in possession of the property to surrender possession thereof to the Government. Section S of the Requisitioning Act provides that all properties requisitioned under section 3 shall be used for such purposes as may be mentioned in the notice of requisition. Such requisitioned property may be released from requisitioning under section 6. The title to the property continues to rest with the owner, the Government being entitled to only the possession of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Minister of State for the Army v. Dalziel, 68 C.L.R. 261. In that case the High Court of Australia had to consider the scope of the legislative power with respect to acquisition of property conferred on the Commonwealth by section 51 (xxxi) of the Commonwealth of Australia Constitution Act of 1900 including the power to take possession for indefinite period. In the said case the placitum of the Australian Constitution which came up for consideration read like this: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to-the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make law. Rich, J. who was one of the Judges constituting the majority in that Bench observed. The language used is perfectly general. It says the acquisition of property. It is not restricted to acquisition by particular methods or of particular types of interests, or to particular types of property. It extends to any acquisition of any interest in any property .............. But there is nothing in the placitum to suggest th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alid against everyone who cannot show a prior or better title............ ......... Possession is a root of title.' Not only is a right to possession a right of property, but where the object of proprietary rights is a tangible thing, it is the most characteristic and essential of those rights. Possession, it is said, is nine points in law. An owner without possession has only a mere shell while the person in possession enjoys the property in many ways. In this situation, it is difficult to say that there cannot be deprivation of property without deprivation of title also. Deprivation of possession for an indefinite period is acquisition of property during that period though the title may continue to rest with the owner. That is why the requisitioning law also had to satisfy Article 19(1) (f) and Article 31 of the Constitution when they were in the Constitution. It is no doubt true that in India before the Constitution there were two modes of depriving a person of immovable property in exercise of the right of eminent domain of the State, namely, requisitioning of property and acquisition of property and even after the Constitution came into force the same pattern of laws is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guage as section 51 of the Act. We have already quoted above section 8 of the Court Fees Act, 1870. The Act corresponding to the Requisitioning Act, which was under consideration by the High Court of Bombay in that decision was the Defence of India Act, 1939. In that case under rule 75A of the Defence of India Rules, 1939 framed under the Defence of India Act, 1939 a plot of land belonging to the claimant therein was acquired by the Government for and on behalf of the Defence authorities and as no agreement could be arrived between the claimant and the Government with regard to the amount of compensation payable, the Government of Bombay appointed the Chief Judge of the Court of Small Causes as an arbitrator under section 19(1) (b) of Defence of India Act, 1939 corresponding to section 8 of the Requisitioning Act, to determine the amount of compensation payable to the claimant. The artibtrator fixed the amount payable to him at ₹ 45,855. The claimant being dissatisfied with that amount filed an appeal in which he claimed a further sum of ₹ 47,896/8 in addition to the amount awarded to him by the arbitrator. The question that arose in that case was whether the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court of Calcutta while following the decision in Ananda Lal Chakrabutty's case (supra) expressly dissented from the view expressed in Hirji Virji Jangbari's case (supra), After the Bombay Court Fees Act, 1959 came into force a similar question arose for consideration in C.B.G. Trust v. Union of India, [1970] Bombay Law Reporter, 4()7, regarding the proper court fee payable on an appeal filed against an award made under the Requisitioning Act. In the Bombay Court Fees Act, 1959 section 7(1) provided that the amount of fee payable under that Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purposes should be computed according to the difference between the amount awarded and the amount claimed by the appellant. The language of that section was similar to the language of section 51 of the Act and of section 8 of the Court Fees Act, 1870. A Division Bench of the High Court of Bombay, which heard the said case held that the Court fee payable on the memorandum of appeal preferred against award made under section 8 of the Requisitioning Act was as prescribed by Article 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the arbitrator. In the Act there is no provision similar to sub- section (2) of s. 26 of the Land Acquisition Act, 1894 where under every award made by the Land Acquisition officer is to be deemed to be a decree of court. Therefore, the question whether the award made under s. 8 of the Act is executable or not is a matter that requires further considera- tion. For the present, we shall proceed on the basis that it, is not executable. But section 9 of the Act requires the competent authority to pay the compensation awarded to the person or persons entitled thereto. Therefore, we are unable to accept the contention of the learned counsel for the appellant that the award made by the arbitrator is something which has not effect and therefore it cannot be considered as an order. It is true that it is not an 'order' as defined in the Civil Procedure Code, the same having not been made by a civil court. But the expression 'order' is not defined in the Act. The award of the arbitrator is undoubtedly a formal expression of a decision made by a competent authority. Further it is a decision binding on the parties to the proceedings in which it is made. Therefore the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er any Act for the time being in force for the acquisition of properties'. The said order need not be an order of a civil court only. It can be of any statutory authority. But it must determine compensation for a property acquired under a law of acquisition of property for public purpose. The award made under section 8 of the Requisitioning Act satisfies these tests. We do not, therefore, find any substance in this contention too. Since according to us the appeal before the High Court filed under section 11 of the Requisitioning Act falls squarely under section 51 of the Act, court fee has to be paid on ad valorem basis as provided in Article 1 of Schedule 1 to the Act. It follows that the residuary Article i.e. Article 3(iii)(A)(1)(a) of Schedule 11 to the Act is not attracted. The High Court was right in following its earlier decision in Y. Venkanna Choudhary's case (supra) and directing the appellants to pay court fee an ad valorem basis under section 5 1 of the Act. We may add that the decision in Srunguri Lakshmi Narayana Rao Ors. v. Revenue Divisional officer, Kakinada Ors., A.I.R. 1968 Andhra Pradesh, 348 M. Ramachandran Ors. v. State of Madras represented b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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