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West Bengal Settlement Kanungoe Co-operative Credit Society Ltd. Vs. Mrs. Bella Banerjee and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberRef. Nos. 2 and 3 of 1951
Judge
Reported inAIR1952Cal554,55CWN778
ActsConstitution of India - Articles 19(1), 19(5) and 31(2); ; West Bengal Land Development and Planning Act, 1948 - Section 8
AppellantWest Bengal Settlement Kanungoe Co-operative Credit Society Ltd.
RespondentMrs. Bella Banerjee and ors.
Appellant AdvocateS.M. Bose, ; Chandra Sekhar Sen, ; Nouni Coomar Chakravarty and ; S.K. Basu, Advs.
Respondent AdvocateAtul Chandra Gupta and ; Amarendra Mohan Mitra, Advs. (in Ref. No. 2) and ; Rajendra Bhusan Bakshi, ; Satya Priya Ghose and ; Jnanendra Nath De, Advs. (in Ref. No. 3)
Excerpt:
- harries, c.j.1. the petitioners in these two cases had applied to this court under article 228 of the constitution praying that the records of two suits pending before a learned subordinate judge at alipore should be transferred to this court for the decision of certain constitutional points which were said to arise in the suits. the records were in due course transferred to this court and this bench heard the parties on the constitutional questions involved in the suits.2. the suits arose out of acquisitions of property made by the west bengal government under the west bengal land development and planning act, 1948. it was suggested on behalf of the opposite parties that the whole of this act was 'ultra vires' and if such was not the case that three provisions of the act were 'ultra.....
Judgment:

Harries, C.J.

1. The petitioners in these two cases had applied to this Court under Article 228 of the Constitution praying that the records of two suits pending before a learned Subordinate Judge at Alipore should be transferred to this Court for the decision of certain constitutional points which were said to arise in the suits. The records were in due course transferred to this Court and this Bench heard the parties on the constitutional questions involved in the suits.

2. The suits arose out of acquisitions of property made by the West Bengal Government under the West Bengal Land Development and Planning Act, 1948. It was suggested on behalf of the opposite parties that the whole of this Act was 'ultra vires' and if such was not the case that three provisions of the Act were 'ultra vires.' This Bench eventually held in a judgment delivered on March 22, 1951 that the whole of the Act was not 'ultra vires.' It further held that a portion of Section 8 proviso (b) of the Act was 'ultra vires', but as the offending portion was severable from the remainder of proviso (b) of Section 8 the whole proviso was not 'ultra vires.'

3. It was further contended that two other portions of Section 8 of this Act were 'ultra vires' namely, the opening portion of Section 8 which is in these terms:

'A declaration under section 6 shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose'

and the Explanation to proviso (a) of this section which reads as follows:

'For the purposes of this clause the decision of the Provincial Government as to whether any land is or is not waste or arable land shall be final.'

4. At the previous hearing, it is now clear, that there was a misunderstanding as to the position taken by the opposite parties with regard to these impugned portions of Section 8. The Bench understood that it was not suggested in the cases that the purposes for which the lands were being acquired were other than a public purpose, and further that it was not suggested that the State Government had described any of the land which they had taken possession of or had sought to possess as other than what in fact it was.

5. The Bench therefore did not come to any definite conclusion as to whether these portions of Section 8 of the Act were or were not 'ultra vires' the Constitution. But for the purpose of considering whether the whole Act was 'ultra vires' the Bench assumed, without deciding the question, that these provisions were 'ultra vires.' Even so the Bench eventually held that the whole Act could not be described as 'ultra vires.'

6. However it is now clear that the opposite parties in the suits do contend that Government acquired or sought to acquire these lands for a purpose which was not public. It is further contended that the lands sought to be acquired were such that Government could not take possession of the same before acquisition as provided by Section 8 proviso (a) of the Act. It is said that in order to take possession of these lands the nature of the lands was misdescribed by the Collector whose decision is final if the Explanation to proviso (a) to Section 8 is 'intra vires.'

7. As there was a clear misunderstanding it was agreed that the previous judgment in these matters should be reviewed and this Court should decide whether or not these two portions of Section 8 are or are not 'ultra vires.' I do not think it is necessary to discuss how this misunderstanding arose. It is admitted that the standpoint of the opposite parties was misunderstood both by the Bench and by the learned Advocate General and it is now conceded that there is an error apparent on the face of the record or something very similar and therefore this Court can and should review the judgment delivered under the provisions of Order 47 Rule 1 of the Code of Civil Procedure.

8. In the previous judgment I set out the provisions of this Act at considerable length. The purpose of the Act was the acquisition and development of land for public purposes and by Section 2(d) of the Act the term 'public purpose' is said to include certain purposes. It is not suggested that any of those purposes is other than a public purpose.

9. The Act then provides for the preparation and sanction of development schemes in respect of lands to be acquired and when such a development scheme is sanctioned a declaration can be made under Section 6 to the effect that such land is needed for a public purpose and by Section 7 such a declaration may be made in cases of urgency before a development scheme is sanctioned. It is then provided by the opening portion of Section 8 that a declaration under Section 6 shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose and the contention of the opposite parties is that this portion of Section 8 is clearly 'ultra vires' in that it enables Government compulsorily to acquire land for a purpose which may not be a public purpose. The argument is that if a declaration is made that the land is required for a public purpose, such is conclusive, though Government may be wrong in their view that the purpose for which the land is acquired is in fact a public purpose. (Compulsory acquisition of land is dealt with in Article 31 of the Constitution of India and Clause (1) of that Article provides that no person shall be deprived of his property save by authority of law.) Clause (2) of Article 31 before amendment then provides:

'No property, movable or immovable, including any interest in or in any company owning any commercial or industrial undertaking shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.'

10. Clause (2) has no application to statutes which had been enacted more than eighteen months before the Constitution came into force and to statutes enacted within eighteen months of the commencement of the Constitution provided the statutes in question had been submitted to the President for his certification in accordance with Clause (3) of Article 31 of the Constitution. The statute under consideration was passed within eighteen months of the Constitution coming into force and was never submitted to the President for certification. In order to be 'intra vires' the Constitution therefore it must comply with the provisions of Clause (2) of Article 31 thereof.

11. Clause (2) of Article 31 is only concerned with acquisition for public purposes and is silent as to acquisition for private purposes. Clause (1) states that no person shall be deprived of his property save by authority of law and no person could be deprived of his property for private purposes unless a law so authorised. It was at one time contended that there was nothing in the Constitution which prevented the State acquiring land compulsorily for private purposes. But it seems to me that the effect of Article 31, clause (2) together; with item 33 of List 1, item 36 of List II, and item 42 of List III, of the Seventh Schedule makes it impossible for the State compulsorily to acquire land for a private purpose. As I have said clause (2) of Article 31 only refers to compulsory acquisition. But the items which I have set out in the various lists deal with the power of the Legislature to legislate.

By item 33 of List 1 the Central Legislature can legislate on acquisition for union purposes which are obviously public purposes. Item 36 of List II entitles the State to legislate respecting acquisition of land and that item is subject to item 42 of List III. Item 42 of List III deals with legislation respecting compensation in cases of compulsory acquisition and it seems to me that reading these three items together neither the Central Legislature nor the State Legislatures have any power to legislate in respect of compulsory acquisition for private purposes and the learned Advocate General has had to concede this. That being so, compulsory acquisition of property for private purposes by a State is not permitted by the Constitution, and any Act which authorised the Central Government or a State Government compulsorily to acquire land for private purposes would be 'ultra vires' the Constitution.

12. Mr. Atul Gupta on behalf of the opposite parties has contended that the effect of the opening words of section 8 of the impugned Act which makes a declaration of Government as to the purpose of acquisition conclusive, is that Government is empowered to acquire land compulsorily not only for a purpose which is in fact public, but also for a purpose which Government believes or states to be public, though it might not in fact be public.

13. The Advocate General contended that the purposes for which compulsory acquisition of property was allowed by Statute were not justifiable. But it seems to me clear from Clause (2) of Article 31 and the three items in the three lists of the seventh schedule to which I have referred that it is open to the Courts to scrutinise Acts empowering Government to acquire property compulsorily and to consider whether or not such Acts go beyond the powers given to the various Legislatures by the Constitution. No Act can be passed which permits compulsory acquisition of a citizen's property for purposes other than public and it appears to me that the Courts must see that no Act allows acquisition beyond that permitted by the Constitution.

14. There can I think be no doubt that the effect of the opening words of Section 8 of this Act is to oust the jurisdiction of the Court when the question arises as to whether an acquisition was made for a public purpose or not. The declaration made by Government would be put forward as conclusive and therefore a Court could not enter into the matter. The learned Advocate General pointed out that making the declaration conclusive could have little or no effect because a dishonest declaration could be ignored by any Court. A power exercised 'mala fide' is no exercise of that power and it has constantly been held by their Lordships of the Privy Council and by Courts in India that an abuse of power is no exercise of the power in question. No difficulty could therefore arise over a 'mala fide' declaration.

15. A declaration, however, made by Government may not be 'mala fide' though it may be erroneous. It is practically impossible to define the phrase 'public purpose' though it is frequently a matter of no great difficulty to decide whether a particular purpose is public or not. There may however be borderline cases and the views of Government and of a Court of justice might not coincide. Government might honestly believe that a particular purpose was public and make a declaration accordingly. On the other hand a Court might hold that such a purpose was not public. But in such a case the hands of the Court would be tied because of the provision in section 8 that a declaration as to the purpose made by Government was conclusive. If that provision bound the Court it could not enter into the question at all and hold that upon the true A.I.R. facts the acquisition in question was not for a public purpose and therefore not within the Act at all.

16. Reliance was placed upon, the case of 'MANIKCHAND MAHATA v. CORPORATION OF CALCUTTA', 48 Cal 916 by the learned Advocate-General. He urged that that case decided that it was open to a Court to consider whether an acquisition was within or without the ambit of an Act though the Act provided that a declaration as to the nature of the Act was conclusive. That case however does not assist the State. All that Greaves J. held in that case was that making a declaration conclusive did not prevent a party from shewing that all the steps necessary before making such a declaration had not in fact been taken. In other words the conclusiveness of the declaration did not preclude the Court from holding that acts which should have been done had not been done.

17. The Advocate-General found it difficult to contend that the result which I have set out would not follow where the Government honestly, though mistakenly, declared a purpose to be public which was not in fact public. In such a case the Court could not, if this provision is intra vires, protect a citizen and Government would be permitted compulsorily to acquire land for purposes other than public.

18. The learned Advocate-General laid stress on sub-section (1) of section 4 of the Act which is in these terms:

'The Provincial Government may, by notification in the Official Gazette, declare any area specified in the notification to be a notified area if it is satisfied that any land in such area is needed or is likely to be needed for any public purpose and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the locality in such manner as he may think fit.'

19. The Advocate-General contended that what really mattered was the satisfaction of Government that the land was needed or was likely to be needed for any public purpose and if Government was satisfied of that fact that concluded the matter. He placed great reliance upon a decision of the Supreme Court in the case of 'PROVINCE OF BOMBAY v. K.S. ADVANI', (1950) SCR 621. In that case the Supreme Court had to construe the words of Section 3 of the Bombay Land Requisition Ordinance (V (5) of 1947) which provided that if in the opinion of the Provincial Government it is necessary or expedient to do so the Provincial Government may, by order in writing, requisition any land for any public purpose. The majority of the Supreme Court held that in deciding whether it was expedient to requisition any property for a public purpose the State was not acting judicially or in a quasi-judicial capacity and therefore no 'certiorari' could issue to quash any order of requisition. The proceedings in that case were in respect of an order made before the Constitution cam(c) into force and the proceedings were in respect of a requisition and not compulsory acquisition of property. No argument was addressed to the Court that the Ordinance was 'ultra vires' any provision of the Government of India Act,. 1935 and, as I have said, the order was made before the Constitution was passed.

20. It does not appear to me that 'PROVINCE OF BOMBAY v. K. S. ADVANI', (1950) SCR 621, is of any assistance to the Advocate-General. It might be contended that where it is said that if a State Government is satisfied that land is required for a public purpose there is no objective test and therefore the satisfaction of the State Government would conclude the matter. That might or might not be the true construction of such words. But since the Constitution came into force we have to consider whether such legislation is permissible or not. Can the Centre or a State legislate empower the authorities to acquire a citizen's lands compulsorily merely because they are honestly satisfied that it is needed for a public purpose though the purpose may not be in fact a public purpose?

21. In my view the words relied upon by the learned Advocate General in section 4 of the Act are open to the same objection as that made to the words in the opening portion of section 8 of the Act. If the effect of sub-section (1) of section 4 is to empower Government compulsorily to acquire land for any purpose when it is honestly satisfied that such a purpose is a public purpose when it is not, then the provision allows Government to do more than is permissible under the Constitution and therefore would be 'ultra vires.' Any provision that would make it impossible for the Court to consider whether a compulsory acquisition was for a public purpose would in effect empower Government to acquire for a purpose which was not public. Making provision preventing the Court considering a question which is justiciable is in effect giving a legislature a greater power than the Constitution allows.

22. In the case of 'MD. SAFI v. STATE OF WEST BENGAL', 55 Cal WN 463, Bose J. held that the honest satisfaction of Government and its declaration that land was required for a public purpose concluded the matter in the case of acquisitions under the Act now under consideration. The learned Judge purported to follow 'PROVINCE OF BOMBAY v. K.S. ADVANI, (1950) SCR 621, and earlier decisions of this Court arid he was not asked to consider whether a Statute permitting the making of such a conclusive declaration did not in effect give a Government greater and wider powers than the Constitution allowed.

23. A very similar circumstance arose in the case of 'A.K. GOPALAN v. STATE OF MADRAS', (1950) SCR 88, in which the Supreme Court held that section 14 of the Preventive Detention Act of 1950 was invalid. That section made it impossible for a Court to see the grounds upon which a detention order was made and therefore no Court could hold that any order of detention was beyond or outside the terms of the Preventive Detention Act or was even 'mala fide.' The Supreme Court held that the effect of section 14 was to bar to all intents and purposes an application for a writ in the nature of 'habeas corpus' to the Supreme Court. The Section in fact had the effect of giving the Central Government or a State Government far wider powers than the Constitution permitted.

24. The position is much the same in this case. The effect of making the satisfaction of Government or its declaration as to the purpose of the acquisition conclusive is to bar the Courts from enquiring into any particular acquisition and holding where necessary that an acquisition was not made for a public purpose as provided by the Act, and allow such acquisition. Such an Act may therefore permit acquestions not warranted under the Constitution.

25. It seems to me that the effect of the provision making the declaration of Government that an acquisition is for a public purpose conclusive is to add an item to section 2 (d) of the Act. Section 2 (d) of the Act states that a 'public purpose' includes various purposes and to those purposes would have to be added any other purpose declared by Government in a declaration under section 6 of the Act to be public. In short, if this provision as to the conclusiveness of the declaration stands the Act authorises Government to acquire not only for a public purpose, but for any purpose deemed or declared by Government to be public, though in fact the purpose may be a private one. Whether a purpose is public or not is frequently a matter of great difficulty and the Act as framed makes Government the sole arbiter on the question whether a purpose is or is not public. It therefore empowers the State compulsorily to acquire land or property for any purpose which it considers to be public and that appears to me to be contrary to the provisions of Article 31 and the items in the three Lists which I have indicated.

26. Of course the provisions of the Act as they stand can be put into effect without offending against the provisions of the Constitution. But the possibility of offending against the provisions of the Constitution cannot be ignored or ruled out. Declarations could honestly be made that a purpose was public , when it was not and therefore the Act as it' stands would empower compulsory acquisition for purposes not authorised by the Constitution. It is no answer to say that normally only lands required for public purposes would be acquired. Lands required for other purposes could honestly be acquired by Government and that being so there is no escape from the conclusion that this provision goes too far and must be regarded as offending against the provisions of the Constitution to which I have made reference. A State Legislature must so draft its statutes that a citizen's property can only be compulsorily acquired for public purposes and where the possibility of such acquisition for private purposes cannot be eliminated an Act in so far as it allows such acquisition is 'ultra vires.' But this provision in the opening words of section 8 is I think severable from the remainder of the Act and can be cut out without affecting the remainder of section 8. The opening words of section 8 after eliminating the offending words would read:

'After making the declaration the Provincial Government may acquire the land and thereupon the provisions of the Land Acquisition Act, 1894 (hereinafter in this section referred to as the said Act), shall, so far as may be, apply.'

27. For these reasons I am compelled to hold that the provision which makes the declaration of Government conclusive as to the purpose for which the acquisition is made is 'ultra vires' and therefore void.

28. It was next argued that the Explanation to proviso (a) of section 8 of the Act was 'ultra vires' in that it allowed Government to take possession of lands which it was not entitled to do under the Act, by making it impossible for the owners or occupiers of such lands to contend that the act of Government of taking possession was contrary to the provisions of the Act.

29. The West Bengal Land Development and Planning Act, 1948 permits Government to acquire any land for any purpose and 'land' is defined in section 2 (a) as having the same meaning as the word has in the Land Acquisition Act, 1894. It would therefore cover waste land, arable land, land upon which houses or other buildings were erected, gardens, orchards and such like.

30. Proviso (a) of section 8 provides:

'If in any case the State Government so directs, the Collector may, at any time after a declaration is made under section 6, take possession, in accordance with the rules, of any 'beel', 'baor', tank or other watery area or any other waste or arable land in respect of which the declaration is made and thereupon such land shall vest absolutely in the Crown free from all encumbrances.'

31. Then follows the explanation which is challenged which is as follows:-

'For the purposes of this clause the decision of the State Government as to whether any land is or is not waste or arable land shall be final.'

32. It will be seen from these provisions that before actual acquisition Government may, but after a declaration is made, direct a Collector to take possession of waste land either covered with water or not, or arable land. But it cannot direct the Collector to take possession of any other kind of land. The explanation provides that the decision of Government as to the nature of the land, possession of which is taken, is final and cannot be questioned. If Government decides that any land is waste or arable land the matter cannot be contested, though the land of which possession has been taken may be of neither category.

33. It was at one time suggested in argument that what these provisions meant was that if Government took possession of what was really arable land, its decision, that it was in fact waste land, was final. But it is now contended that these provisions go further than that. What these provisions mean is that Government can decide that any land of which possession is taken before acquisition is of such a nature that possession could be lawfully taken under the provisions of proviso (a) of Section 8.

34. Mr. Atul Gupta on behalf of the opposite parties does not now contend that the Explanation to proviso (a) of Section 8 affects the question of compensation because the Explanation to proviso (a) opens with these words: 'For the purposes of this Clause the decision of the State Government...............shall be final.' The Explanation therefore only applies to proviso (a) which deals merely with taking possession of land. At one time it was suggested that a mistaken decision of Government that a land, which was not waste, was waste would naturally affect the amount of compensation as compensation would have to be assessed on the basis that the land was waste land because the contrary could not be urged. However it is clear that the Explanation only applies for the purpose of proviso (a) and does not apply for the purposes of proviso (b) of Section 8 relating to compensation and this is now conceded.

35. Mr. Atul Gupta's argument however is that the Explanation permits an unreasonable interference with the citizen's right to hold property and therefore is 'ultra vires' Art 19(1) (f) of the Constitution. To give the State the sole power, to decide whether possession should be taken of any land before acquisition is, it is said, a restriction on the right to hold property which cannot be justifiable in the interests of the general public.

36. Mr. Gupta contends that though it might be reasonable (though he does not admit it) to allow Government to decide whether any land taken possession of was arable or waste, when it was either one of the two, it is wholly unreasonable to allow Government to decide finally that land which is neither waste nor arable belongs to one of the two latter classes. It is suggested in these cases that Government has taken possession of or has sought to take possession or orchards and have decided that the land, possession of which was taken or sought to be taken, came within the classes described in proviso (a) of section 8. A statute which gives the State such powers goes, it is said, far beyond what is necessary and therefore is 'ultra vires' the provisions of the Constitution to which I have referred. Had the Explanation to proviso (a) affected the amount of compensation I would have been inclined to hold that it was 'ultra vires.' ' But as it does not affect that matter it must be considered only with reference to Article 19(1)(f) of the Constitution.'.

37. The learned Advocate General contended that Articles 19(1)(f) & 19(5) have no application to cases where a person is deprived of the possession of property. He contended that the relevant Article was Article' 31 (1) and (2) and as provision was made for compensation no objection could be taken to the explanation. It is unnecessary to decide this question because even if Article 19(1)(f) applies, the restriction imposed is, in my mind, no more than is necessary in the interests of the general public. Much however might be said in support of the view that Article 19(1)(f) has no application but the matter is by no means a simple one and the point can, as said, be decided on other grounds.

38. The West Bengal Land Development and Planning Act was passed in the main with a view to securing and developing lands and establishing towns, model villages and agricultural colonies for the settlement of immigrants who had migrated from East Bengal. Another object was the creation of better living conditions in urban and rural areas and the improvement and development of agriculture etc.

39. The objects of the Act are laudable and there can be no doubt that there is considerable urgency in the matter. There has been a large influx of people from East Bengal into this State and the question of their re-settlement and rehabilitation is pressing and urgent in the extreme. That I think cannot be doubted by any person with any knowledge of conditions in this State. Further the production of food for the inhabitants of this State, is a matter of great gravity and urgency. Production of food must, if possible, be increased and legislation for that purpose appears to be absolutely necessary.

It is, I think, therefore clear that the conditions obtaining in this State when this Act was passed and which still obtain require that Government should have power in proper cases to acquire land immediately for the purposes set out in section 2 (d) of the Act. The needs of the State are pressing and demand urgent and immediate action. That being so, is it unreasonable to allow the State to take possession of lands immediately before proceedings for acquisition are complete? It seems to me that the circumstances now existing make it imperative that the State should have such powers so that the resettlement and rehabilitation of refugees are proceeded with the utmost speed and that more food should be produced and grown for the rapidly extending population of the State.

40. Unless some provision similar to that in the Explanation to proviso (a) was included in this Act, it would be practically impossible for Government to take possession before the conclusion of possibly very protracted proceedings relating to the acquisition of such land. Unless the decision of Government that the land is of such a nature that immediate possession can be taken is made final, the act of Government in taking possession would be questioned in practically all cases and the right to take immediate possession would be defeated with the consequent delay in obtaining land for rehabilitation and re-settlement of refugees and for greater production of food.

All that the Explanation to proviso (a) of section 8 amounts to is that objection by the owner or occupier cannot be taken to Government taking possession where the Government decides that the land is such that possession can be taken of it under proviso (a) of Section 8. The problems which the Government in this State have to face are urgent and demand immediate solution and unless such powers are given it would I think in most cases be quite impossible to put these development schemes into execution until proceedings relating to acquisition of the land have been completed. Such a delay might have serious consequences and a provision which obviates that delay does not appear to me to impose a restriction on the right to hold property unreasonable in the interests of the general public. Public interest demands in particular that refugees be settled and rehabilitated with as little delay as possible, otherwise discontent is bound to arise which might have serious repercussions on the State itself.

41. It is urged that taking possession of land before the amount of compensation was fixed and paid is a very serious interference with the right to hold property. But it seems to me that the ills of this State require drastic remedies and where immediate action is necessary in the interests of the State and the citizens of the State, then restrictions on the rights of individuals can readily be justified in the public interest. Further in assessing the compensation allowance can be made under the provisions of the Land Acquisition Act for this dispossession. For example, if there are standing crops on the land the land will have to be valued with the standing crops upon it and the owner or occupier will thereby not suffer any real loss. It might be said that the person who was entitled to the standing crops would not have the immediate advantage of the crops. But he can be compensated by being allowed interest on the value of the crops.

The granting of just and proper compensation presents no insurmountable difficulties and complete justice I think could be done by paying proper compensation. The rights of citizens must be protected. But the Constitution recognises that there may be occasions when the rights and the interests of the State transcend the rights of the individual. In such cases restrictions may be imposed on the rights of citizens or individuals which are perfectly justified in the interest of the community as a whole. But for the Explanation to proviso (a) every act of taking possession could be immediately challenged and the taking of actual possession might be delayed for an indefinite time. Making it impossible for the citizen to challenge the right to take possession when possession is taken, though a serious interference with his rights, is not in the circumstances existing more than is I think necessary in the public interest. That being so I cannot hold that this provision is 'ultra vires' Article 19(1)(f). and Article 19(5) of the Constitution.

42. In the result therefore I hold that the provision in Section 8 of the West Bengal Land Development and Planning Act, 1948 making the declaration of Government conclusive as to the nature of the purpose of the acquisition is 'ultra vires' the Constitution and therefore void. But I hold that the Explanation to proviso (a) of Section 8 does not offend against the Constitution and is therefore 'intra vires' and valid.

43. It was held in the original judgment that the provision in the concluding portion of proviso (b) of Section 8 was 'ultra vires' and void; further that the whole Act could not be regarded as 'ultra vires' after expunging therefrom the provisions held to be 'ultra vires.' We have not allowed any further argument on these two matters and such was not even asked of us.

44. The result of the two judgments therefore is that the concluding portion of proviso (b) of Section 8 of the Act limiting the amount of compensation is held to be 'ultra vires' as also the provision relating to the conclusiveness of the declaration of Government as to the purpose of the acquisition. The Explanation to proviso (a) of Section 8 of the Act is held to be 'intra vires' and the Act as a whole, after the exclusion of the two portions held to be 'ultra vires', is: held to be 'intra vires.'

45. Let the records of these two cases be returned to the Court below with copies of the two judgments delivered by this Bench, namely, this judgment and the judgment delivered on March 22, 1951.

46. The Courts below will proceed to decide the other issues in these cases in the light of the decision of the constitutional points in these-two judgments.

47. We had already directed that the costs of the earlier proceedings will be costs in the suits. We direct that the costs of this further hearing will also be costs in the suits. The hearing-fee of this further hearing is assessed at five gold mohurs in each application before this Court.

48. We certify under Article 132(1) of the Constitution that these cases involve substantial questions of law as to the interpretation of the Constitution. We cannot however express any opinion upon the question whether the orders; which we have made are final orders and therefore appealable.

Banerjee, J.

49. I agree.


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