TMI Blog1957 (1) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... nt prosecution of the War. Out of this area 162.83 acres were situated in village Ghiniwala, and 123.47 acres out of the acquired area in this village belonged; to Surjan Singh and his real brother Bachan Singh. The land acquired in this village also contained five tube-wells vide R. W. 1/12. Out of these five wells Surjan Singh and Bachan Singh owned four wells. The Collector by his order dated the 12th of March 1945 classified the acquired land in this village as irrigated and unirrigated (71.13 acres were held to be irrigated and 81.70 acres were held to be unirrigated land) and offered compensation at ₹ 250/- per acre for the former and ₹ 125/- per acre for the latter type of land. He also offered ₹ 1000/- for each of the tube-wells. Surjari Singh and Bachan Singh refused this offer though some other proprietors in the village accepted it. On the 14th of January, 1946, Shri Ram Narain was appointed arbitrator under the Defence of India Act. The two brothers in a joint claim dated the 29th May 1946 required compensation to be fixed for the entire area at about ₹ 1,600/- per acre and at ₹ 2,000/- for each well. They also claimed compensation for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although the award was given and the appeals were filed before the 26th of January, 1950. It is necessary to decide this question before taking up the appeals on merits. 3. On the commencement of the Second World War the Defence of India Act was enacted which came into force on the 29th of September, 1930. Under Section 1(4) the Act was to remain in force during the continuance of the War and for a period of six months thereafter. Under Section 19 of the Act when any property was acquired compensation was payable ' to the claimants in accordance with the principles and procedure laid down in this section. Rule 75-A was inserted by notification dated the 25th of April 1942, in the rules made under the Defence of India Act laying down the procedure for requisitioning and acquiring movable and immovable property and for payment of compensation for immovable properties so requisitioned or acquired. By Ordinance No. 12 of 1946 dated the 30th of March, 19(sic), additions were made to Section 1(4) of the Act whereby in substance principles of Section 6 of the General Clauses Act were incorporated in this section. The result was that after the 30th of March, 1946, the expiry of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals filed thereunder have also abated as now no relief can be granted under the expired enactment. 4. I have, however, come to the conclusion that this principle of law as urged by the Advocate-General is not applicable to the present case. It is true that the Defence of India Act with the rules made thereunder is a temporary enactment, but it cannot be said that all rights created under this enactment are necessarily temporary. In the present case the land was acquired under the Defence of India Act by the Government and undoubtedly it has become the property of the Government for all times to come. The Government has also used the property on that basis and has completely altered the nature of the land acquired. When a temporary Act expires, then undoubtedly it should be regarded as having never existed except as to matters and transactions past and closed (vide Maxwell page 403), Whether a particular matter or transaction should be considered to be past and closed depends on the nature of the transaction or the nature of rights given in the temporally Act In this connection I may refer to Steavenson v. Oliver (1841) 8 M. W. 234 (B). In that case under a temporary Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to receive compensation for the acquired property is also a right which could not have been intended to depend on the continuance of the temporary Act. Section 299(2) of the Government of India Act, 1935, laid down that an owner whose property had been acquired had a right to receive compensation therefor. It follows that when land is acquired, then its owner has an indefeasible right to receive compensation. That being so, it must be held that on acquisition the claimants had a vested right to receive compensation and it cannot be seriously urged that the right to receive compensation was an inchoate right which fell with the statute. Any other conclusion would result in grave injustice to the owners whose property has been acquired and whose compensation has not been finally determined and would also be in conflict with the Constitution Acts of 1935 and 1950. In the present case compensation was determined by the arbitrator before the Defence of India Act became ineffective and appeals were also filed by the claimants as well as by the Government in this Court in accordance with the pro-visions of that enactment. 5. The question that remains to be decided is whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the compensation till a final decision had been obtained from the Court of Appeal. I am of the opinion that the legislature's intention in the present case was that the parties had a right vested in them on the date of acquisition of the property that the compensation therefore should be calculated as payable on that date in accordance with the principles and procedure laid down for this purpose in Section 19 of the Act. In this view of the matter the decision of the Supreme Court in Jagamander' Das's case (A) is of no assistance in deciding the present case. In that case the Defence of India Rules had created a new offence which was unknown to the country and before prosecution was launched the Defence of India Act had expired. It is well settled that when a penal law is broken, the offender can be punished under it only if he was convicted before it expired even if the prosecution was begun while the Act was still in force (Maxwell page 403). That being so, I am of the opinion that the appeals under consideration have not abated and can be heard and decided on merits even after the expiry of the Defence of India Act. 6. There is another way of looking at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing words- The rule against the revival of a statute by the repeal of a repealing statute relates to absolute repeals only, and not to a case where the statute is left in force, and all that is done in the way of repeal is to except certain cases from its operation, in which case the original statute does not need to be revived, for it remains in force, and, the exception being taken away, the statute is to be applied without the exception. Therefore, it can be said that Section 19 read with Rule 75-A was an exception to the Land Acquisition Act and on its expiry the I and Acquisition Act became applicable. In this American case the accused was proceeded against under an Act which was an exception to an existing Act. The new Act was suspended and it was ordered that the accused could be sentenced under the permanent Act and that was in spite of the fact that the proceedings were instituted under the new Act. 7. In England also before the Interpretation Act came into force it was presumed that the legislature intended to revive the repealed statute without using any formal words for that purpose when the statute that repealed it was itself repealed. 8. Oraies on St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have paid court fee in their respective appeal on the basis of their ownership in accordance with their allegation of private partition. As Surjan Singh owns considerably more area than his brother out of the acquired land he has claimed in his appeal compensation according to his share and has paid far more court-fee than Bachan Singh who is content with the award of compensation according to the share he obtained in private partition. The objection is that the brothers should have claimed in their appeals in equal shares and the appeal of Surjan Singh so far as it relates to more than his share must be held to have been overvalued and dismissed to that extent. As regards Bachan Singh, it must be held, according to the learned counsel for the Government, to have been undervalued, and, therefore, his contention is that he should be awarded compensation in accordance with the court-fee paid by him. This objection has no force whatsoever. The (and is admittedly jointly recorded in the revenue papers in favour of the two brothers whose father Chanan Singh had purchased the land now in dispute. There is no dispute between the brothers regarding their respective shares in the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the entire area was recorded as irrigated. In 1920 Kanshi Ram sold it to Rai Bahadur Sardar Buta Singh. At that time about 2300 kanals were recorded as irrigated. In the jamabandi of 1930-31 the irrigated area is shown as 2004 kanals. The jamabandi for 1934-35 is not on this record. It is, therefore, clear that about the entire area was considered to be irrigated till that time. The acquisition order in the present case was made on the 2nd September, 1943. The 1938-39 jamabandi relating to the acquired land shows that about 860 kanals were either chahi or nehri or neri chahi, while about 30 kanals. were shown as barani. This jamabandi also shows about 260 kanals as barijar qadim and about 19 kanals as banjar jadid. The area recorded as ghair mumkin was 64 kanals 7 marlas. After the requisition of the property in 1942 and after the Government had started covering the area into a landing ground, the jamabandi of 1942-43 was prepared. This is admitted by both sides. In this jamabandi, banjar qadim and banjar jadid, increased to 310 kanals 18 marlas and 126 kanals 12 marlas respectively, while barani area increased to 628 kanals 9 marlas. Ghairmumkin area also increased t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o shows that there was a sharp rise in prices thereafter. In 1941 wheat was sold at 13 seers per rupee, in 1942 at 8 seers, in 1943 at 3 3/4 seers (to relevant period), in 1944 at 4/3.8 seers and in 1945 at 4 seers per rupee. It is therefore not surprising that in jamabandi 1938-39 about 280 Kanals is shown as banjar and considering the entire area to be about 1200 kanals this proportion does not appear to me to be too high. The learned counsel for the claimants also stated that he had carefully gone through all the khasra girdawaris produced in this case and he found that every piece of land in that area was at one time or other under irrigation. This statement of the learned counsel was not controverted by the learned counsel for the Government although he had ample time to do so. In these circumstances, I am of the opinion that a hypothetical purchaser would consider the entire area in dispute to be subject to irrigation and would pay price for the entire area as irrigated and agricultural land with the exception of 64 kanals 7 marlas which is recorded as ghair mumkin. That being so, the compensation should be fixed on this basis. 14. In the present case the Collector has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case. 17. (After discussion of evidence adduced by the claimant the judgment proceeds.) Taking all the circumstances into consideration, i.e., the nature of the land and the prevailing prices of agricultural produce, I am of the opinion that compensation in the present case should be fixed at about ₹ 70/- per kanal or taking it into a round figure at ₹ 650/- per acre. I am conscious of the fact that this computation involves considerable amount of conjecture but such a conjecture is implicit in a decision which requires fixation of compensation on the basis of a hypothetical market. 18. The claimants have claimed ₹ 2,000/-as price of each well. The Collector and the arbitrator have awarded Rs. l,000/- for each well. P. W. 21 Gopal Singh, a retired Overseer, Inspected two of these four wells and came to the conclusion that the cost of constructing them came to about ₹ 2,000/- each. The estimate, however, has been made accordingly to the prices prevailing in 1942 or 1943. As a matter of fact, the Overseer should have found the present value of the wells and not the value for constructing a new well and, therefore, this evidence, is irrele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claimants are entitled to interest at 4 per cent per annum on the amount which is in excess of the sum which the Collector has awarded. 22. The result is that the appeals of the claimants, i.e., Regular First Appeals Nos. 17 and 18 of 1949, are partly accepted. They are entitled to receive compensation at ₹ 650/- per acre on the entire land excepting 64 kanals 7 marlas for which they are entitled to get only ₹ 125/- per acre. They are entitled to receive ₹ 4000/- for the 4 wells acquired. They are also entitled to interest at 4 per cent per annum on the amount in excess of the amount offered by the Collector till the date of realisation. 23. It is not necessary to Separate the amounts that are payable to Surjan Singh and Bachan Singh respectively. Shri Dasundha Singh stated before us that it is not necessary to divide their shares and he submitted that a consolidated amount may be awarded and it will be open to the two appellants to take their shares severally according to their share under private partition or jointly from the authorities. In these circumstances, I do not consider It necessary to calculate the respective shares of Surjan Singh and Bachan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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