Hindusthan Housing & Land Development Trust Ltd. v. State Of West Bengal .

The Judgment of the Court was delivered by

Bose, J.:— This is a suit for recovery of Rs. 77,481-13-3 on account of compensation payable by the defendant to the plaintiff in respect of a requisition of certain lands made by the Government under the Defence of India Rules, 1939, together with interest thereon.

2. The plaintiff's case as laid in the plaint, is that the plaintiff company is the owner of certain lands in Mouza Kankulia in Police Station Tollygunge in the District of 24-Parganas. By an order dated the 21st June, 1946, the then Government of Bengal requisitioned the said lands, and a copy of the order was served on Messrs. Pod-dar Brothers Ltd. who were the Managing Agents of the plaintiff company, at No. 115A, Chittaranjan Avenue, Calcutta, within the jurisdiction of this Court.

3. On or about the 80th January, 1947, the Land Acquisition Collector, 24-Parganas, fixed and offered to pay Rs. 4,641 per month as compensation, in respect of the said lands with effect from 29th June, 1946, and the plain tiff agreed thereto. On 15th May, 1947, the Collector sanctioned payment of the pre-partition claim then due. Under the provisions of the Indian Independence Act, 1947, the Province of Bengal was split up in two new provinces of East Bengal and West Bengal as from 15th August, 1947. The agreement to pay compensation referred to above became as from 15th August, 1947, a contract for purposes which as from that day were exclusively purposes of the Province of West Bengal and should be deemed to have been made on behalf of that Province instead of the Province of Bengal. It is further alleged that by and under the Indian Independence (Rights, Property and Liabilities) Order, 1947, the compensation payable to the plaintiff under the said order of requisition is a liability of the Province of West Bengal and that Province became liable to pay the same. Further under the Constitution of India the State of West Bengal became so liable from 26th January, 1950.

4. In spite of acknowledgments of liability and promises in writing made, by or on behalf of the Government of the State of West Bengal or its predecessor Governments, within the said jurisdiction, the Government has not paid the compensation for the period 29th June, 1946, to 14th August, 1947 (wrongly stated as 1st August, 1947). The particulars of acknowledgments or promises are set out in paragraph 9 of the plaint, and the particulars of claims including claim for interest amounting to Rs. 14,743-7-3 are set out in pargaraph 11 of the plaint.

5. It is further alleged that the lands are in the possession and control of the District Magistrate, 24-Parganas, and the order of requisition is in force till the date of the suit.

6. Notice under section 80 of the Code of Civil Procedure is alleged to have been served at Writers' Buildings and it is dated 8th August, 1949.

7. In paragaph 13 of the plaint, it is alleged that part of the cause of action as mentioned in paragraphs 2, 3, 9 and 12 of the plaint has arisen within the jurisdiction of this court.

8. The total claim is laid at Rs. 77,481-13-3.

9. In the written statement filed by the defendant it is denied that the compensation claimed by or under the order of requisition was a liability of the Province of West Bengal or is a liability of the State of West Bengal. It is alleged that the liability is that of East Pakistan. The alleged acknowledgment of liability and the promises are denied. The sufficiency of the Notice under section 80 is denied. It is alleged that the claim is barred by limitation and the court has no jurisdiction to try the suit. The Agreement fixing the compensation is however not specifically denied and it is stated that the defendant has paid all rents which accrued due from 15th August, 1947.

10. The following Issues were raised at the hearing:—

1.. Did the Agreement referred to in paragraphs 3 and 5 of the plaint become as and from the 15th August, 1947, a contract for purposes which as from that day were exclusively purposes of the Province of West Bengal and should be deemed to have been made on behalf of the Province of West Bengal?

2. Is the Province of West Bengal liable to pay the compensation claimed in the plaint?

3. Is the claim barred by limitation?

4. Was a sufficient Notice in compliance with the provisions of section 80 of the Code of Civil Procedure given to the defendant?

5. Has this Court jurisdiction to try the suit?

6. To what relief, if any, is the plaintiff entitled?

11. It may be pointed out that Mr. S.P Mitra, the junior counsel appearing on behalf of the defendant, wanted to raise another issue to the effect that the Agreement pleaded in paragraphs 3 and 5 of the plaint is invalid and unenforceable in law as it does not conform to the requirements of section 175 of the Government of India Act, 1935. But as this defence is not expressly pleaded in the written statement, I did not allow this issue to be raised in view of the decision of the Supreme Court reported in (1954) S.C.A 278 (Kalyanpur Lime Works Ltd. v. State of Bihar) (1). I made it clear to the learned counsel for the defendant that if he took steps to amend the written statement on payment of the days costs, I would allow him an opportunity to make an application for amending the written statement and then if the amendment was allowed, the defendant might raise the issue as to the validity or non-enforceability of the Agreement; but the learned counsel on instructions did not choose to avail himself of this opportunity.

12. Issue No. 1:

With regard to this Issue the learned counsel for the defendant has conceded that the purpose of the Requisition was from 15th August, 1947, exclusive purpose of the Province of West Bengal. The learned counsel does not admit anything about the contract referred to in paragraph 5 of the plaint.

13. Issue No. 2:

The learned counsel for the defendant has submitted that the liability for payment of compensation as a result of requisition made by the Government under the Defence of India Rules, is a liability imposed by Statute and, therefore, it is a “financial obligation” of the Government within the meaning of paragraph or Art. 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947. It is submitted that the liability for OF payment of compensation was guaranteed by section 299 of the Government of India Act, 1933, and Section 19 of the Defence of India Act and so it is a “guarantee of financial obligation” as contemplated in Art. 9 of the Independence Order and as such it is the liability of the Province of East Ben gal under Art. 9(b) of the Order,

14. In my view the contention of the learned counsel for the defendant cannot be accepted. The true meaning and implication of Art. 9 is to be gathered, having regard to the scheme and character of the entire Independence Order.

15. Art. 8 deals with rights and liabilities arising out of contracts.

16. Art. 8(6) of the Order states that the provisions of Art. 8 shall have effect subject to the provisions of Art. 9. This suggests that Art. 9 also deals with certain liabilities or obligations which may affect the liabilities: coming within Art. 8.

17. The scope of this Art. 9 of the Order was discussed before me in Suit) No. 1346 of 1948 of this Court [Momens Khatun v. State of West Bengal (2) (Judgment, dated 30th August, 1950], and I made the following observation:—

“In my view ‘financial obligations’ in paragraph 9 do not cover contractual liabilities. It refers to and includes liabilities of the kind and nature similar to the liabilities for loans and guarantees. The expression has to be construed ejusdem generis.

By the observation “para. 9 does not cover contractual liabilities” was meant that the liabilities which accrued or arose purely out of contracts as contemplated by Art. 8, did not come within Art. 9. I do not however think that paragraph 9 was intended to cover cases where the liability is one imposed by Statute, e.g, the Defence of India Act (section 19) in the present case. The liabilities arising out of contracts of all descriptions are covered by Art. 8, and Art. 9 covers cases of special kinds of liabilities or obligations as are specified in para. 9 of the Order. In other words Art. 9 has reference to certain special contracts only, but it has no reference to liabilities arising out of Statute.

18. The words “financial obligation” have been construed by the Supreme Court in the case of State of West Bengal v. Serajuddin Bailey (3) [(1954) S.C.A 36], and it has been held, that the expression has to be construed ejusdem generis with loans and guarantees, and the expression did not cover the case of liability for rent payable by the Government under a lease.

19. In the case of Nilima Sarkar v. Governor General in Council (4) (86 C.L.J 98) Harries, C.J observed as follows:–

“It seems to me that the phrase ‘financial obligations’ in Art. 9 must be read ejusdem generis with loans and guarantees Further I think it is clear that the financial obligations referred to in Art. 9 are the obligations of a contractual nature. Art. 8 deals with liabilities in respect of contracts and sub-section (6) of Art. 8 provides that the provisions of that Article shall have effect subject to the provisions of Art. 9 of the Order. In other words Art. 9 is an exception to Art. 8 which suggests that Art. 9 really deals with financial obligations of a contractual nature.”

20. The observations of Das, J., of the Supreme Court in Serajuddin Batley's case (3) [(1954) S.C.A 36 at page 40] also lends support to the observations of Harries, C.J Das, J., observed:

“………….., there cannot be any doubt that those expressions did not refer to all and sundry pecuniary obligations of the State arising out of contracts of every description.”

Mr. Ranadeb Chaudhuri, the learned counsel for the plaintiff, has submitted that the case comes within either Art 8(2)(a) of the Independence Rights, Property and Liabilities) Order inasmuch as the Agreement) to pay Rs. 4,641 as compensation was for purposes which were exclusively purposes for the Province of West Bengal; or the case comes within Art. 10 of the Order as the liability to pay compensation is a liability in respect of “an actionable wrong, other than breach of contract”.

21. Now formerly the view taken by this Court was that the expression “actionable wrong” as occurring in paragraph 10 of the Order had reference to tortious acts only, but the Supreme Court has held that the words have a wider connotation and they include all “wrongs” which give a right of action to the person wronged.

22. This is the majority view of the Supreme Court taken in the case of State of Tripura v. Province of East Bengal (5) [reported in (1951) Supreme Court Reports, page 1.]

23. The learned Judges have dealt with the question of construction of paragraph 10 of the Order exhaustively and I do not propose, therefore, to deal with it at any length. Reference may be made to pages 11, 12, 20-23, 44-45 of the Supreme Court Reports.

24. This case of the Supreme Court has been followed by this Court in Ramesh Chandra v. State of West Bengal (6) (57 C.W.N 767) which was a case of wrongful dismissal. The Punjab High Court in Nanak Chand v. Punjab State (7) [A.I.R (1954) Pun. 181] has applied paragraph 10 of the Order in case of a suit for price of goods which were confiscated by the Government and were not restored to the owner of the goods in spite of the order of Court made on 9th August, 1947.

25. In the present case the liability or obligation to pay compensation for requisition arose under the Statute. It is imposed by the Statute. Section 19 of the Defence of India Act enjoins that compensation has to be paid. The amount or rate of compensation is fixed, either by agreement or arbitration. In the present case the rate or amount of compensation was fixed by agreement and it is this agreement which is pleaded in paragraphs 3 and 5 of the plaint. The liability did not arise wholly out of this agreement. The liability arises out of the Statute and the agreement taken together. The cause of action of the plaintiff is based on the fact of requisition, the liability to pay the compensation by reason of the requisition and the agreement fixing the amount of compensation. But the liability arises for non-fulfilment of the statutory obligation to pay the compensation as provided by the Defence of India Act. The liability is the creature of Statute. The cause of action is the breach of a statutory obligation, which is an actionable wrong.

26. It appears to me that having regard to the Supreme Court decision in State of Tripura's case (5), it must be held that the non-fulfilment of the liability to pay the compensation for requisition made under the Defence of India Act and the Rules made there under, is a liability in respect of an actionable wrong and is a liability of the State of West Bengal under paragraph 10(2)(b) of the Indian Independence (Rights, Property and Liabilities) Order, 1947.

27. Mr. R. Chaudhuri drew my attention to the case reported in 54 C.W.N 807 (Madan Gopal v. Province of West Bengal) to show that Art. 9 has been held not to apply to a case of liability for compensation by reason of acquisition of property under the Land Acquisition Act. This case has been referred to in the decision of the Supreme Court in Serajuddin Batley's case (3) [(1954) S.C.A 36] and it is not necessary to deal with this case at any length in this judgment.

28. Issue No. 3:

The learned Counsel for the defendant has submitted that either Art. 115 or Art 17 of the Limitation Act governs this case and so the plaintiff's claim became barred in 1948 or 1950, according as Art. 17 or Art. 115 is attracted.

29. It has been further submitted by the learned Counsel that the acknowledgments pleaded in paragraph 11 of the plaint do not in law constitute acknowledgments for the purpose of saving limitation.

30. Mr. R Chaudhuri has pointed out that the cause of actions pleaded is not based on agreement simpliciter, but it is the breach of a statutory obligation to pay the compensation, which forms the principal basis of the cause of action,

31. I am of the view that the cause of action as pleaded does not bring the case within Art. 115.

32. The cause of action, as I have pointed out already, is that by reason of the order of requisition the defendant became liable to pay the compensation. The liability accrued under the Statute, viz., the Defence of India Act and the Rules made thereunder which provide that upon requisition, compensation is to be paid. The agreement pleaded in paragraphs 3 and 5 of the plaint relates to the quantum or amount of compensation and not to the liability. Under the Defence of India Act, (section 19), and in the present case, the rate was fixed by agreement; hut the liability arose independently of the agreement. If there had not been any agreement in the present case, the amount would have been fixed by Arbitration, but there cannot be any question that the liability would have existed apart from the agreement or arbitration about the amount of compensation.

33. So the cause of action cannot be said to be based solely on the breach of agreement. It is also based on breach of an obligation under the Statute. In this view of the matter Art. 115 of the Limitation Act does not apply. The residuary Article being Art 120 applies and the claim is not therefore barred.

34. The contention of the learned Counsel for the defendant that Art. 17 of the Limitation Act applies, appears to me to be equally untenable.

35. Article 17 was intended to apply to cases where property is acquired absolutely, in the sense, that the title of the owner whose property is acquir ed is extinguished and the property vests in or the title is transferred to the person for whom the acquisition is made and the amount of compensation is payable once for all. The Article cannot have application where only possession of the property is taken as under a requisition, and there is a recurring liability in respect of the compensation payable, so long as such possession continues to be with the Government. It is true that this Court has held in Province of Bengal v. Board of Trustees (8) [A.I.R (1946) Cal. 416 at 418] that the Defence of India Act governs both cases of acquisition and requisition and that requisition is included in acquisition, but this interpretation for the purposes of the Defence of India Act and the Rules made thereunder, cannot be availed of in interpreting the term “acquisition” as occurring in Art. 17 of the Limitation Act. I hold that Art. 17 has no application to the facts of the case before me.

36. Now assuming that Art 115 of the Limitation Act is attracted to this case, the next question is whether the acknowledgments of liability pleaded in the plaint are sufficient acknowledgments in law for the purpose of saving the claim from being barred by limitation.

37. The first letter relied on at the hearing is dated 20th April, 1949 (D.D 9). This letter is addressed to Messrs. Talbot & Co., the agents of the plaintiff, and is written by an officer of the Land Acquisition Collector's Department A request is made in this letter to send bills in quadruplicate for the period from 29.6.46 to 14.8.47 amounting to Rs. 62,738-6 at Rs. 4,641 per month for submission before the Application Committee. As regards the compensation for the subsequent period from 15.8.47 it is stated that the dues would be paid upon Government sanction being obtained.

38. In the next letter dated the 15th June, 1949 (P.D 7), Special Officer of the Finance Department (Application Committee) records the fact that the pre-partition claim was awaiting scrutiny by the East Bengal (Audit) Wing of the Application Committee. The clear implications of these two letters are that if the Application Committee decides that the sum claimed is pay able by the Government of West Bengal, the latter would pay it.

39. By their letter of the 27th February, 1950, the Collector's office requested the plaintiff to submit paid up bill of municipal taxes before the Executive Engineer, Suburban Division, for period 29.6.46 to 31.3.47 for his verification and for payment. These letters clearly show that the Collector's; office was acknowledging that there was claim for compensation outstanding for a certain period at a certain rate and that the Government was also liable to pay municipal taxes as part of the compensation payable in respect of the lands.

40. Mr. S.P Mitra submitted that the Collector or other persons making the alleged acknowledgments or promises had no authority to do so and so they are not binding on the Government. This want of authority is not pleaded in the written statement nor was any issue raised on this point. So this plea cannot be taken notice of. Apart from this, there is correspondence on record to show that the matter was brought to the notice of the Finance Secretary and the latter has authorised the Financial Adviser to deal with the claim put forward on behalf of the plaintiff. In the circum stance it is difficult to follow how it can be seriously suggested that the acknowledgments, if any, were made without any authority (see P.D 10 to P.D 14).

41. Now, in the well-known case of Maniram Seth v. Seth Rupchand (9) (I.L.R 33 Cal. 1047), the acknowledgment of liability relied on was in the following terms:— “For the last five years he (i.e, the respondent) had open and current accounts with the deceased.” The Judicial Committee in dealing with it, made the following observations (page 1057):

“There is therefore a clear-admission that there were open and current accounts between the parties at the death of Motiram. The legal consequence would be that at that date either of them had a right as against the other to an account. It follows equally that whoever on the account should Le shown to be the debtor to the other, was bound to pay his debt to the other: and it appears to their Lordships that the inevitable deduction from this admission is that the respondent acknowledged his liability to pay his debt to Motiram or his representative, if the balance should be ascertained to be against him.”

42. The Privy Council upon a consideration of the relevant English Cases and upon construction of section 19 of the Limitation Act held that this was a sufficient acknowledgment to take the case out of Statute,

43. It may be noted that the Explanation I of section 19 provides that an acknowledgment is sufficient even if it is accompanied by a refusal to pay, and in the case of Janardan Shaha Pod-dar v. Radha Ballav Shaha (10) (23 C.W.N 921), where parties acknowledged that accounts remained unadjusted which the arbitrators were to adjust and each party distinctly agreed that he would have to pay such amount as might be found due from him on adjustment of accounts, it was held that this was a sufficient acknowledgment. The learned Judges who decided this case quoted Halsbury's Laws of England (Vol. 19, p. 66) to show that where there is an acknowledgment that accounts are still pending and have not yet been adjusted, it constitutes an acknowledgment of liability (see page 923).

44. The same principle is reiterated in the decision of the Madras High Court, reported in Suboramayya v. Reddi, (11) A.I.R (1939) Mad. 300 at 301. After referring to the Privy Council case of Maniram Seth v. Seth Rupchand (9), the learned Judge observed:—

“It seems to me that the ruling just referred to is clear authority for the view that the admission of the existence of an open account and an expression of willingness to have it settled implies an admission of liability for the amount which may be found upon the settlement.”

45. So, even if Art 115 of the Limitation Act is applicable to the case, the claim is saved by reason of the acknowledgments of liability made from time to time on behalf of the defendant.

46. The learned Senior Standing Counsel has in course of his argument in reply, also suggested that Art. 36 of the Limitation Act applies to the facts of the case and consequently the claim became barred between 1948 and 1949 I do not think that there is any force in this contention. Article 36 applies to a case of “compensation for any malfeasance, misfeasance, or nonfeasance independent of contract, and not specially provided for in the Limitation Act.” It is therefore clear that the Article has reference to tortious acts. But the non payment of compensation by the Government to the plaintiff in the present case cannot be said to be a tortious act though it is an “actionable wrong” within the meaning of the very wide definition given to the expression “actionable wrong” by the Supreme Court in the case of State of Tripura v. Province of East Bengal (?) [(1951) S.C Rep. 1.]

47. That Article 36 applies to tortious acts or in other words, is the residuary Article for actions ex delicto has been held in many cases (see e.g, Bhayaji v. Savitri (12) I.L.R 19 Bom 133 at 135 : A.I.R (1954) Bom. 417; Genuji Rami v. Muralidhar (13).

48. Maclean, C.J, has further held in the Full Bench case of Mangun Jha v. Dolhin Golap Koer (14) I.L.R 25 Cal 692 at 699, that Article 36 applies more generally to wrongful acts committed ty persons standing in a fiduciary or quasi-fiduciary character, such as Executors, Trustees and Directors of companies.

49. The defendant in the present case cannot be said to be standing in any fiduciary or quasi-fiduciary relation to the plaintiff. I have already explained the nature of the claim as laid in the plaint in the case before me. In my view Art. 36 has no application.

50. I hold that the claim of the plaintiff is not barred by limitation.

51. Issue No. 4:

The learned Counsel for the defendant has submitted that the suit is not maintainable in the absence of a valid and sufficient notice under section of the Code of Civil Procedure and the alleged notice dated the 8th August, 1949, is not a valid notice inasmuch as the description and place of residence of the plaintiff is not stated and the cause of action is not sufficiently pleaded in the notice Reference is made to Bhola v. Secy of State (15) I.L.R 40 Cal. 503; Prasaddas v. K.S Banerjee (16) (57 Cal 1127); Sarada v. Rajrajeshvorashram (17) [A.I.R (1935) Bom. 276].

52. Now it has been held by the Privy Council and this Court that section 80 of the Code is mandatory and admits of no implications or exceptions. [Bhagchand v. Secretary of State (18) (54 I.A 338).

53. It has also been held that the notice need not be a verbatim copy of the plaint and the Court should import a little commonsense in construing; notice under section 80. See Someswar v. Union of India (19) (85 C.L.J 364 at 368); Prasaddas v. K.S Banerjee, (16) I.L.R 57 Cal 1127 at 1136 (though in this case the Notice was held to be lad as no description, at all, nor any indication of the place where the plaintiff could be approached was given in the notice); (20) 41 C.W.N 92 : (21) 52 C.W.N 808 (per Chatterjee, J); (22) A.I.R (1943) Bom. 138 : (23) A.I.R (1938) Nag. 415.

54. Now in a suit for recovery of compensation payable upon a requisition under the Defence of India Rules, the facts which constitute the case of action are (a) the order of requisition, (b) the determination or fixing of the amount or rate of compensation by agreement or arbitration, and (c) nonpayment of such compensation. The only fact which has not been expressly stated in the Notice is whether the rate of compensation was fixed by agreement or arbitration, though it is stated in the notice that the Collector had fixed the compensation of Rs. 4,641 per month. Then again, the Notice describes the compensation as “Rent”, but in the plaint, the amount outstanding is described as compensation. I do not however think that these defects justify me in rejecting the Notice as a bad notice. The plaintiff and its agents had long correspondence with the defendant in its various departments and so the Government understood quite clearly from the Notice as to what was the nature of the claim of the plaintiff. In the letter of the 20th April, 1949, (D.D- 9) the Collector's office describes the money payable as “Rent-Compensation” and in the records of the proceedings before the Land Acquisition Collector, the amount payable is indiscriminately described as Rent or Compensation (See pages 4C and 4E of the admitted brief of documents) (Ex. A).

55. It may be noted that mere requisition does not create any relationship of landlord and tenant. Nalini Ranian Guha v. Union of India (25) [(1953) 93 C.L.J 378] : (24) A.I.R 1952 Pun. 116, which follows A.I.R (1950) Cal. 83.

56. It appears to me that the cause of action for the principal amount of the claim is sufficiently stated in the Notice and the cause of action as pleaded in the plaint is a detailed reproduction of the same.

57. It is to be noted however that the claim for interest is not stated in the Notice at all and as there is no indication of it in the Notice, the plaintiff cannot lay any claim for interest in the plaint.

58. Now it is true that the residence of the plaintiff, which must in the case of the plaintiff company, be its registered office, or place of business, is not specified in the Notice but it has been held that the whole object of the requirement under section 80 as to description and residence, is to enable the Gov eminent to identify the claimant and to approach the party for the purpose of settling the claim without litigation, if possible. In the present case, the Government has been in constant touch with the plaintiff and its agents Talbot & Co., and therefore knew fully well where to approach the plaintiff.

59. Further an address is given at the top of the Notice and there was therefore no difficulty on the part of the Government in approaching the plain tiff at such address, if necessary. Moreover there is no evidence that the address 6, Old Post Office Street, is not the place where the plaintiff company has a place of business. I hold that the Notice under section 80 of the Code is a good and sufficient Notice.

60. Issue No. 5.

The plaintiff in paragraph 13 of the plaint has stated that a part of the cause of action as mentioned in paragraphs 2, 3, 9 and 12 arose within jurisdiction, and this statement has not been traversed in the written statement.

61. It is not disputed that the Order of Requisition was served within jurisdiction. It has also been alleged that the acknowledgments of liability were made within jurisdiction and the Notice under section 80 of the Code was also served within jurisdiction There is no dispute that the Notice under section 80 was served at Writers' Buildings, Calcutta.

62. It has been held by Bachawat, J., that a part of the cause of action arises at the place where the Notice under section 80 is served. [Nalini Ranjan Guha…Applicant; v. Union Of India…Opposite Party. (25) (93 C.L.J 373)]. I see no reason to differ from this decision.

63. I hold that this Court has jurisdiction to try the suit.

64. The learned Senior Standing Counsel has raised a further point as to the maintainability of the suit based on the provisions of sections 17 and 19 of the Defence of India Act 1939. This point was also raised for the first time in course of the argument in reply. This point is not taken in the written statement. It is submitted that section 17 of the Defence of India Act is a bar to the maintainability of the suit. Reliance is placed on an un reported judgment of G.K Mitter, J, in Suit No. 1413 of 1948, Purnendu Bhusan Deb Burman v. Union of India (26) (Judgment dated the 3rd December, 1953).

65. In the case before G.K Mitter, J., a suit was brought for recovery of damages on account of certain goods taken over by military authorities and utilised by them in the construction of bridges, shelters, etc., in Cachar District, for War purposes. The plaintiff's case was that he had purchased certain quantity of timber from the Badarpur Tea Co., Ltd., in liquidation. The Military authorities commandeered and took possession of Badarpur Tea Estate which belonged to one Saheb Gangadhar Tushnian and they also took possession and made use of the timber belonging to the plaintiff, lying on the said Tea Estate, under the wrong impression that the said goods belonged to the said Rai Saheb Gangadhar Tushnian, The claim was for damages in respect of the goods wrongfully taken by the Military authorities and used by them for the purpose of construction of bridge, etc. The plaintiff's case according to the learned Judge was that the goods were requisitioned by the Military authorities and used by them for War purposes, and the learned Judge found that the Military authorities had acted bona fide in taking possession of the goods and using them for purposes for which they were utilised. The plaintiff had failed to satisfy the Military authorities that the goods belonged to him. In the circumstances the learned Judge held that the suit was barred under section 17 of the Defence of India Act and it was also not maintainable apart from the provisions of the Defence of India Act.

66. In the case before ma the plaintiff does not challenge the validity of the Requisition of the lands, but its case is that in spite of the Requisition and agreement fixing the rate of compensation, the compensation which is directed by the Defence of India Act itself to be paid upon requisition, has not been paid by the Government.

67. This act of non-payment of compensation cannot be said to be anything done or intended to be done in pursuance of the Defence of India Act or any rules made thereunder, within the meaning of section 17 of the Defence of India Act. The cause of action is the omission to do (i.e, to pay compensation) that which is directed by section 19 of the Act.

68. It will be putting a curious construction on section 17 of the Defence of India Act if it is held that this section bars the maintainability of a suit to enforce payment of compensation which is directed to be paid by another section of the same Act (viz., section 19). The non-payment of compensation is an act done in contravention of Section 19 of the Defence of India Act. It is not an act done “in pursuance of this Act, or any rules made thereunder.” Such an act cannot further be regarded as anything done in good faith.

69. In the case of State of Bihar v. Parmeshwar Lal (27) [A.I.R (1953) Patna 254] where a suit was brought to recover compensation in respect of certain stocks of rice requisitioned under Rule 75A of the Defence of India Rules, it was held by Rai, J., that such a suit was not barred by the provisions of section 16 and section 17 of the Defence of India Act,

70. The observations made by the Supreme Court in the case of the State of Tripura v. Province of East Bengal (5) [(1951) S.C.R 1], while-dealing with section 65 and section 67 of the Indian Income Tax Act, observed at page 18 of the report as follows:–

“There is no question here of the liability of the Crown for damages for the negligent or tortious act of its officers.”

71. This, observation was made to express the dissent of the Supreme Court from the view expressed by the High Court and which is quoted at page 11 of the Report.

72. I hold that section 17 of the Defence of India Act is no bar to the maintainability of the present suit.

73. This disposes of all points raised in the suit.

74. There will, therefore, be a decree in favour of the plaintiff for Rs. 62, 738-6-0 with interim interest (i.e, pending suit) at the rate of 6 p.c per annum and interest on decree at 6 p.c The defendant will pay to the plaintiff the costs of the suit on Scale No. 2 including reserved costs, if any. Certified for two counsel.

75. Decree passed herein is to be satisfied within a period of two months from date.

Solicitors: M.G Poddar for the Plaintiff; N.C Mitra for the Respondent.

S.N.S