STATE OF WEST BENGAL Vs. CALCUTTA IMPROVEMENT TRIBUNAL

JUDGEMENT

(1.) This application is directed against the legality and competence of the Calcutta Improvement Tribunal granting solatium at the rate of 15% in accordance with the provision of Sec. 23 (2) of the Land Acquisition Act even though under Clause 7 (1) of Schedule I of the Howrah Improvement Act, 1956 the said provision of Sec. 23 (2) of the Land Acquisition Act has been deemed to be omitted from the said Act.

(2.) The subject matter of dispute is the acquisition of Premises No. 73, Baruipara Lane, Howrah, which was notified for acquisition for Doomrajtala Baruipara Scheme known as 'Scheme No. IT under section - 33 (b) of the Howrah Improvement Act. This notification is dated 7th of June, 1962 and was published in the Calcutta Gazette on 19th of July, 1962. Thereafter acquisition proceeding was started in LA Case No. II/ 8/31 of 1963 - 64 and an award was made by the Special Land Acquisition Officer (H.I.T.) Howrah on 9th of Dec., 1964. The respondents Nos. 4 and 5 who are the owners of the said premises made an application to the Collector praying for referring the said matter to Civil Court under section 18 of the Land Acquisition Act, 1894. On 17th of Dec., 1964, the Collector referred the said case to the Calcutta Improvement Tribunal and it was registered as Case No. 28 of 1968 (V) Howrah. The Tribunal consisting of its President and two assessors formed under section 71 (1) of the Howrah Improvement Act after hearing the parties by a judgment dated 16th of Dec. 1968 increased the valuation of the land and the tank and also allowed statutory allowance at the rate of 15% as provided under section 23 (2) of the Land Acquisition Act controverting the contention raised on behalf of the State that the provision for payment of statutory allowance as provided in section 23 (2) of the Land Acquisition Act had been omitted from the Howrah Improvement Act by virtue of the provision of Paragraph 7(1) of Schedule I of the said Act. It was held by the Tribunal that in view of the ruling of the Supreme Court reported in AIR 1968 SC 1425 (Balammal Vs. State of Madras) wherein similar provision was held to be ultra vires Art. 14 of the Constitution, the Tribunal was inclined to grant solatium relying on the said observations of the Supreme Court.

(3.) Mr. Susil Kumar Biswas, learned Advocate appearing on behalf of the petitioner, has submitted that although the Supreme Court in the aforesaid decision as well as in other decisions has observed that similar provision was ultra vires Art. 14 of the Constitution, still the question that remains to be considered is whether the Tribunal which is a creature of the statute can go beyond the statute and declare certain provisions of the statute as ultra vires Art. 14 of the Constitution. It is now well-settled that the similar provision in the Calcutta Improvement Act deleting the provision of section 23 (2) of the Land Acquisition Act had been held to be ultra vires Art. 14 of the Constitution in the decision reported in AIR 1975 Calcutta 87 ( Board of Trustees for the Improvement of Calcutta Vs. Calcutta Improvement Tribunal and others) and also in AIR 1973 Calcutta 478 (State of West Bengal Vs. Asitendra Nath Mitter) wherein it has been held that Para 9 (1) of the Schedule to the Calcutta Improvement Act which omits section 23 (2) of the Land Acquisition Act, that is, solatium at the rare of 15% in determining compensation infringes equality clause in Art. 14 of the Constitution. The decision of the Supreme Court in Balammal's case has also been relied upon and followed in the decision reported in AIR 1973 SC 689 (Nagpur Improvement Trust Vs. Vithal Rao). Thus on a consideration of ail these decisions the position is now well-settled that the deletion of section 23 (2) of the Land Acquisition Act from the Howrah Improvement Act, 1956 by virtue of the provision of paragraph 7 of Schedule of that Act is ultra vires Art. 14 of the Constitution.