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HIGH COURT OF CALCUTTA
P. B. CHAKRAVARTTI, S. C. LAHIRI
SURESH CHANDRA DAM - Appellant
Versus
UNION OF INDIA (UOI) - Respondent
A. F. O. O. 144 Of 1957
Decided On : JULY 10, 1958
DEFENCE OF INDIA RULES - COMPENSATION - CLAIM FOR - RIGHT TO - WHETHER A FINANCIAL OBLIGATION - INDIAN INDEPENDENCE (RIGHTS, PROPERTY AND LIABILITIES) ORDER, 1947, ARTS. 9 (A), 10.
Fact of the Case:
Appellant claimed compensation for lands acquired from him under the Defence of India Rules before India's Independence. He filed a writ petition under Article 226 of the Constitution against the Union of India, Sri M. N. Anand, Deputy Director, Land and Hirings and Sri N. C. Sen, Chairman, Pre-Partition Compensation Claims (Defence Services) Committee for East Bengal, for a writ of mandamus, directing them to pay him compensation and damages, as claimed, or to determine the amount payable or appoint an arbitrator, as contemplated by Section 19 of the Defence of India Act, 1939. A Rule was issued on that application by Sinha J. , but at the final hearing, Bose J. , discharged the Rule. Thereafter, the present appeal was preferred.
Finding of the Court:
1. The appellant's claim is not covered by the Press Communique, as it does not include claims for compensation in respect of lands compulsorily acquired under the provisions of the Defence of India Rules. 2. There is no agreement between the Dominions of India and Pakistan that India would pay claims like those of the appellant, as the Communique discloses a disagreement rather than an agreement. 3. The liability to pay compensation to the appellant is not a financial obligation within the meaning of Article 9 (a) of the Rights, Property and Liabilities Order, as it is not a contractual liability or a liability relating to State finance. 4. The liability to pay compensation to the appellant is a liability in respect of an actionable wrong within the meaning of Article 10 of the Rights, Property and Liabilities Order, as it arises from the refusal or delay in making payment.
Issues: 1. Whether the appellant's claim for compensation is covered by the Press Communique? 2. Whether there is an agreement between the Dominions of India and Pakistan that India would pay claims like those of the appellant? 3. Whether the liability to pay compensation to the appellant is a financial obligation within the meaning of Article 9 (a) of the Rights, Property and Liabilities Order? 4. Whether the liability to pay compensation to the appellant is a liability in respect of an actionable wrong within the meaning of Article 10 of the Rights, Property and Liabilities Order?
Ratio Decidendi: 1. The Press Communique does not cover claims for compensation in respect of lands compulsorily acquired under the provisions of the Defence of India Rules, as it expressly states that Government were undertaking the initial liability of certain payments "to avoid hardships to the suppliers and contractors" and then it proceeds to say that all bills and claims "in respect of supplies and services rendered to the late Government of India up to and inclusive of 14-8-1947" should be submitted by a certain date. Only claims in respect of supplies and services were thus going to be entertained and some relief or accommodation was going to be provided only for suppliers and contractors. 2. The Communique discloses a disagreement rather than an agreement between the Dominions of India and Pakistan, as paragraph 2 of the Communique refers first to the fact that a large number of claims, particularly those relating to areas which had fallen to Pakistan, were still outstanding and then it says that they remained outstanding for several other causes and also "owing to a difference of opinion between the two Governments about the liability for these payments." 3. The liability to pay compensation to the appellant is not a financial obligation within the meaning of Article 9 (a) of the Rights, Property and Liabilities Order, as it is not a contractual liability or a liability relating to State finance. The expression "financial obligations" in Article 9 (a) of the Order is to be construed ejusdem generis with the words "loans and guarantees" preceding it. The result of so construing the expression has been held to be that it must be taken as limited to obligations of a contractual character and, secondly, to such obligations relating to State finance. 4. The liability to pay compensation to the appellant is a liability in respect of an actionable wrong within the meaning of Article 10 of the Rights, Property and Liabilities Order, as it arises from the refusal or delay in making payment. The expression "liability in respect of an actionable wrong" in Article 10 (1) of the Order presupposes that before the appointed day, something has been done which is wrong, that the wrong is actionable and that a liability has accrued as a consequence of that wrong.
Final Decision: Appeal dismissed.
( 1 ) A preliminary objection has been taken in this appeal that it is ineffectively constituted and that even if the appellant succeeds in making out a case on the merits, no relief can be given to him by making any order on any of the respondents. The appellant is asking for a writ of mandamus in respect of a claim of money which he says he has against the Union of India on account of compensation for lands acquired from him under the Defence of India Rules before India's Independence. It is pointed out that respondents Nos. 2 and 3 who were impleaded as holders of certain posts under respondent No. 1, the Union of India, had ceased to hold those posts even before the trial Judge made his order and that the appellant, instead of amending his petition, elected to proceed against the Union of India alone. He lost before the trial Judge and having lost appealed, but in the appeal he again impleaded respondents Nos. 2 and 3. They have appeared before us by a learned Advocate, but only to say that they have no longer any concern with the appellant's claim and that no direction given with regard to that claim could now be carried out by them, as they are holding other posts. It is not disputed that against respondents Nos. 2 and 3, no writ of mandamus, directing them to do what the appellant wants to be done can any longer be issued. There remains the first respondent, the Union of India. With regard to that respondent, it is contended by Mr. Roy that the Union does not reside within the jurisdiction of this Court and is not also otherwise within its jurisdiction and, therefore, if the Court were to issue a writ on the Union of India, there would be found no one within the Court's jurisdiction on whom the writ could be served. He states that the Pre-Partition Compensation Claims (Defence Services) Committee for East Bengal no longer exists and the Office of the Deputy Director, Lands and Hirings, has also been abolished. Only a skeleton Office is said to be now functioning at New Delhi and it is only that Office which is dealing with outstanding questions regarding payment of compensation for properties acquired during the time of the War, The appellant does not admit that all the offices of the Government of India, dealing with claims for compensation, have now been removed from the jurisdiction of this Court, and contends that some offices are still located in Calcutta and the Court could well direct the Union of India through them. If it were necessary to decide the preliminary point, we would have directed respondent No. 1 to file an affidavit as to the actual position regarding the present location of the relevant offices and would also have to go into the rather difficult question as to whether, where the Union of India was the sole party-respondent in an application under Article 226 of the Constitution, this Court could in any case entertain the application and make an effective order. As, however, we think that the appeal cannot succeed on the merits, we do not find it necessary to deal with the preliminary point.
( 2 ) TURNING now to the merits, the appellant's case is that during the year 1942-43, extensive landed properties of great value situated at Kurmitola in the District of Dacca were requisitioned from him by the then Government of India for the construction of an aerodrome and for other military purposes. They were kept under requisition till July, 1945, and then permanently acquired. The acquisition having been made under Rule 75a of the Defence of India Rules, the appellant's case is that he had become entitled to compensation under Sub-rule (4) of the Rule. He estimated the amount to which he was entitled at Rs. 10,19,875/- and lodged his claim with the then Government of India sometime in 1948. Receipt of his claim was acknowledged and he was informed that his claim for the period prior to 15-8-1947, had been referred to the Lands, Hiring and Disposal Services Directorate, New Delhi,
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