PHANINDRA KUMAR SENYAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) A rule was issued upon the respondent to show cause why Reference Case No. L.R.A. 20 of 1963 pending in the Court of the Special Land Acquisition Judge, 24 Parganas, should not be transferred to this Court for disposal or in the alternative the questions of law formulated in paragraph 21 or the petition should not be determined by this Court and the case returned to the said Land Acquisition Judge for disposal in informity with the decision of this Court. In order to dispose of the said Rule, it is necessary to take note of the relevant facts in the next succeeding paragraph. For this purpose, the reference is treated as transferred to and heard by this Court.

(2.) The petitioners were owners of about seven bighas of land in Mouza Satgachi, P.S. Dum Dum within the Municipal Area of South Dum Dum Municipality. After the West Bengal Estates Acquisition Act came into force, they claimed to retain the said lands and held the same as tenants under the State of West Bengal paying rent to the latter. Sometime in April 1950, some people including refugees from East Pakistan took forcible possession of the said lands. In July 1951 the petitioners applied before the competent authority under the Rehabilitation of Displaced Persons and Eviction of Unauthorised Occupation of Land Act 1951 for eviction of the said persons. During the pendency of this case the State of West Bengal proceeded to acquire the said land's under a notification and declaration under the provisions of the West Bengal Land Development and Planning Act of 1948. The notification under Section 4 of the Act dated January 12, 1957 was published in the Calcutta Gazette and the declaration under Section 6 dated May 22, 1958 was published in the said Gazette, on June 5, 1958. The petitioners' case is that they knew nothing about this before March 1959. On March 27, 1962 a notice under Section 12(2) of the Land Acquisition Act 1894 was served upon the petitioners intimating that a sum of Rs. 19,174.57 nP. had been awarded to them in respect of the acquisition of the said lands for a squatters colony. On May 1, 1962 the petitioners filed their objection to the said acquisition and the award alleging various grounds including one relating to the inadequacy of the compensation which according to them should not have been less than Rs. 1,60,000/-. The petitioiners prayed for reference under Section 18 of the, Land Acquisition Act, 1894 in which they charged that as the plots of land in question had already been wrongfully and illegally occupied by certain persons pretending to be immigrants the acquisition could not be said to bs for any public purpose and that acquisition of land to regularise the criminal trespass cannot be described as for a public purpose. Thereafter the petitioners filed a statement of claim before the Special Land Acquisition Judge, 24-Parganas urging that the acquisition purported to have been made was based on provisions which were ultra vires the Constitution of India and for a purpose which could not he described as a public purpose, the comDensation of award was illusory and amounted to a fraud on the Constitution.

(3.) The petitioners' main grievance, is that the pro visions contained in Section 8 (i) of the West Bengal Land Development ana Planning Act, 1948 in so far as they provide that if the market value of any land acquired for the public purpose specified in Section 2(d)(i) exceeds the market value of five land on the 31st December, 1946, thn amount of such excess shall not be taken into consideration, does not specify any principle on which or the manner in which the compensation is to be determined and the same was therefore ultra vires the provisions of Section 299 of the Government of India Act, 1935 and of Article 31 (2) of the Constitution of India, The said provisions of West Bengal Act XXI of 1948 being ultra vires Section 299 of the Government of India Act, 1935 cannot be saved under Articles 31, 31-A, 31-B of the Constitution of India. The, petitioners further contend that the amendment of the proviso (b) to Section 8 (i) of the West Bengal Land Development and Planning Act, 1948 made in 1955 does not make the said Act and the said proviso valid inasmuch as it was void when enacted in 1948 and could not be saved or revived by the Constitution Fourth Amendment Act of 1955. The petitioners further submitted that the then provincial legislature having no competence to enact any law in violation of Section 299 of the Government of India Act, 1935, the said Act XXI of 1948 and/or the said proviso was not an existing law as defined in Article 366 (10) and as referred to in Article 31(5) of the Constitution of India and did not continue in forte by virtue of the Constitution. In the premises the petitioners submitted that the following questions as to the interpretation of the Constitution arose for determination by this Court: