The Judgment of the Court was delivered by

Harries, C.J:— In these two cases Rules were issued on the parties to show cause why two suits pending before a learned Subordinate Judge at Alipore should not be transferred to this Court under Art. 228 of the Constitution. The suits, it was said, involved difficult constitutional points, and after hearing the parties this Court came to the conclusion that points of importance and difficulty arose in the cases which Art. 228 of the Constitution required the High Court to decide.

2. We have now heard the parties upon the constitutional questions involved and as the points are common to both the suits it will be convenient to dispose of both the matters in one judgment. The suits were brought lay persons who had been called upon to vacate certain lands said to have been acquired under the West Bengal Land Development and Planning Act, 1948 (Act XXI of 1948). In the suits it was prayed that the notification under sec. 4 and the declaration under sec. 6 of Act XXI of 1948 be declared-void, illegal and ultra vires and that all proceedings under the said Act were without jurisdiction, illegal, and ultra vires and that the same do not affect or prejudice in any way the absolute right, title and interest of the plaintiffs in the respective suits in the land in question. There was also a claim for khas possession of the land and a permanent injunction restraining the defendants from further interfering with the plaintiffs' possession.

3. To appreciate the points involved it will be necessary shortly to set out the facts which gave rise to this litigation. The defendants in both the suits were the West Bengal Settlement Kanungoes Cooperative Credit Society Limited.

4. In November, 1949, the defendants applied to the Government of West Bengal for authorisation to undertake a development scheme under sec. 5(1) of the West Bengal Land Development and Planning Act, 1948. The Government made a notification under sec. 4 of the Act and after hearing objections of the persons affected by the notification, the Special Land Acquisition Collector of 24-Par-ganas submitted a report. The West Bengal Government approved the detailed scheme and lay-out plan of the ap- pellant society and directed the Collector of 24-Parganas to submit an estimate of the “cost of acquisition and to make a declaration forthwith under sec. 6 of the Act. The Government also directed that possession should be made over to the Society as soon as the cost of acquisition was deposited in accordance with the estimate of the Collector. A declaration under sec. 6 of the Act was published in March, 1950, and the Government of West Bengal took possession of the lands.

5. Later, in the month of March 1950, the defendant Society entered into an agreement with the Government as contemplated in sec. 10(2) of Act XXI of 1948. The defendant on payment of the estimated costs of acquisition of the whole of the lands, namely, Rs. 1,73,628-1-10 took possession of the land and entered into contracts with builders for the purposes of developing the said land.

6. The plaintiffs thereupon brought the Suits claiming possession of the lands and declarations that all the proceedings under Act. XXI of 1948 were void and of no effect and that the Act itself was ultra vires the Constitution.

7. Before us it has been contended on behalf of the plaintiffs that the whole Act is ultra vires the Constitution of the Republic of India by reason of the fact that its provisions offend against Articles 19(1)(f) and 31 of the Constitution. Needless to say that if the whole Act offends against these Articles or either of them the Act is ultra vires. Further even if the whole Act does not offend against either of these Articles, so much of the Act as does offend against the Articles would have to be declared ultra vires if such were severable from the remaining provisions of the Act.

8. The Act in question, namely, the West Bengal Land Development and Planning Act, 1948, is a comparatively short Act which empowers the Government of West Bengal to acquire property compulsorily in certain circumstances. Section 1 of the Act provides that it shall extend to the whole of West Bengal with the exception of the Calcutta Municipality and directs that it should come into force on the date upon which the West Bengal Land Development and Planning Ordinance, 1948, ceases to operate. That date, we are informed, was October 7, 1948.

9. Section 2 is the definition section and by sec. 2(d) it is provided that the term “public purpose” includes—

“(i) the settlement of immigrants who have migrated into the Province of West Bengal on account of circumstances beyond their control,

(ii) the establishment of towns, model villages and agricultural colonies,

(iii) the creation of better living conditions in urban and rural areas, and

(iv) the improvement and development of agriculture, forestry, fisheies and industries.”

10. The land in question in both these suits was said to have been acquired for the settlement of immigrants who have migrated into the Province of West Bengal due to communal troubles in East Bengal and for the establishment of towns, model villages or agricultural colonies for sum immigrants. It is not suggested on behalf of the plaintiffs that the land was not acquired for any of these purposes.

11. Section 3 of the Act provides for the appointment of an authority, described thereafter as the prescribed authority, for carrying out the purposes of the Act. Section 4 empowers the State Government, by notification in the official gazette, to declare any area specified in the notification to be a notified area, if it is satisfied that any land in such area is need-ed or is likely to be needed for any public purpose, and the section directs that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the locality. After such notification has been made the persons authorised by Government are given powers to enter upon the property, the subject matter of the notification, for the purposes of surveying, etc.

12. Section 5 of the Act empowers the State Government to direct the prescribed authority appointed under sec. 3, or, if it so thinks fit in any case, authorise any company or local authority, to prepare a development scheme in respect of the land in any notified area, and such scheme when prepared must be submitted, with such particulars as may be demanded, to the State Government. Sub-sec. (2) of sec. 5 empowers the Government to sanction such a scheme with or without modification.

13. Section 6 provides that when a development scheme has been sanctioned and the Government is satisfied that any land in the notified area for which such scheme has been sanctioned is needed for the purpose of executing such scheme, a declaration to the effect that such land is needed for a public purpose shall be made by the Provincial Government. It is further provided that the declaration which is to be published in the official gazette shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan has been made of the land, the place where such plan may be inspected.

14. Section 7 provides that in cases of urgency the State Government may make a declaration under sec. 6, though no development scheme has either been prepared or sanctioned under sec. 5.

15. Section 8 provides that a declaration under sec. 6 shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose and provides that after such declaration the Government may acquire the land and thereupon the provisions of the Land Acquisition Act shall, so far as may be, apply.

16. The following two provisos which it is necessary to set out in extenso:

“Provided that—

(a) if in any case the Provincial Government so directs, the Collector may, at any time after a declaration is made un der 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 (now the State) free from all en cumbrances;

Explanation.— 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;

(b) in determining the amount of compensation to be awarded for land acquired in pursuance of this Act the market value referred to in clause first of sub-section (1) of section 23 of the said Act shall be deemed to be the market value of the land on the date of publication of the notification under sub-section (1) of section 4 for the notified area in which the land is included subject to the following condition, that is to say,—

If such market value exceeds by any amount the market value of the land on the 31st day of December, 1946, on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the said notification, the amount of such excess shall not be taken into consideration.”

17. Section 9 empowers the Government, if it considers expedient, to retain, let on hire, lease, sell, exchange or otherwise dispose of any land acquired under the Act. But it is provided that where the Provincial Government decides to sell or lease any land acquired under the Act the person or persons from whom the land was so acquired, shall be offered a prior right to take on lease or purchase the land on such terms and conditions as may be determined by the Government. If two or more persons claim to exercise the right to obtain a lease or to re-purchase, the right shall be exercisable by such claimant as the Government may determine.

18. Section 10 empowers the Government to direct the prescribed authority to execute the development scheme sanctioned, and upon execution of the scheme so directed, the lands comprised therein are to be disposed of by the Collector. If on the other hand the Government empowers a company or a local authority to execute such a scheme, it may authorise such company or local authority to dispose of the lands.

19. Section 11 provides that the Government if satisfied that a company or local authority is not carrying out the terms of the scheme, it may by order withdraw the power to execute such scheme from such company or local authority and may make other arrangements for its execution.

20. Section 12 is an immunity section and sec. 13 allows the State Government to delegate its powers. Section 14 is the rule-making section which empowers the Government to make rules for carrying out the purposes of the Act and sec. 15 provides that any orders made under the Ordinance which the Act superseded will be deemed to have been made under the Act.

21. No objection is or indeed can be taken to secs. 1 to 6 of the Act. But it is contended that portions of sec. 8 are ultra vires the Constitution of India. In sec. 8 it is provided that a declaration made under sec. 6 of the Act shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose. This, it is said, is a wholly unreasonable provision and imposes an unreasonable restriction on the right granted by the Constitution of India to hold land and therefore is contrary to the provisions of Art. 19(1) (f) and Art. 19(5) of the Constitution.

22. Objection is also taken to the Explanation to proviso (a) of sec. 8 which provides that for the purposes of proviso (a) which entitles the Collector to take possession of various kinds of land, the decision of the Provincial Government as to whether any land is or is not waste or arable land shall be final. This, it is said, imposes a wholly unreasonable restriction on the right to hold property and that it is therefore void as contrary to Articles 19(1) (f) and 19(5) of the Constitution.

23. Further it is suggested that the provision in the proviso (b) to sec. 8 limiting the amount of compensation, no matter when the land was acquired, to the market value of the land as ascertained on December 31, 1946, is contrary to Art. 31 (2) of the Constitution. It is suggested that the provision for compensation is arbitrary and does not provide for compensation in the true sense of the word.

24. Lastly it was contended that the whole Act was ultra vires, because no provision was made in the Act for giving persons affected a hearing before the Government made a declaration under sec. 6 of the Act. It was conceded however that rules had been made under sec. 14 of the Act and sub-r. (2) of r. 5 does provide an opportunity to persons to make representations against the proposed scheme and acquisition. It was however contended that the making of rules was discretionary and not compulsory and therefore the Act must be regarded as ultra vires, as its procedure was wholly unreasonable.

25. The Act, as I have said, came into force on October 7, 1948, that is, within eighteen months of the Constitution of the Republic of India coming into force. Compulsory acquisition of land is dealt with in Art. 31 of the Constitution which provides that no person shall be deprived of his property save by authority of law. Clause (2) of this Article provides that no property shall be taken possession of or acquired for public purposes under any law unless such law provides for compensation for the property taken possession of or acquired and either fixes the amount of compensation or specifies the principles on which and the manner in which the compensation was to be determined and given.

26. Clause (5) of the Article provides that nothing in clause (2) shall affect the provisions of any existing law other than a Jaw to which the provisions of clause (6) apply and clause (6) provides:

“Any law of the State enacted not more than eighteen months before the commencement of this Constitution may within three months from such commencement be submitted to the President for his certification and thereupon, if the President by public notification so certifies, it shall not be called in question in any court on the ground that it contravenes the provisions of clause (2) of this article or has contravened the provisions of sub-section (2) of section 299 of the Government of India Act, 1935.”

27. Sub-sec. (2) of sec. 299 of the Government of India Act, 1935, is very similar in terms to clause (2) of Art. 31 of the Constitution.

28. This Act of the State of West Bengal could therefore under Art. 31(6) have been submitted to the President for his certification and upon certification it could not have been questioned in any court on the ground that it contravened the provisions of clause (2) of the Article. The Act however was not submitted to the President for his certification and therefore it is contended that it can be challenged on the ground that it contravenes the provisions of clause (2) of Art. 31, because by the express terms of clause (5) (a.) such an Act is not exempted from the provisions of clause (2) of the Article.

29. The Advocate-General, however, contended that the Act though enacted within eighteen months of the passing of the Constitution would have to be regarded on the same footing as existing law enacted more than eighteen months before the Constitution came into force. He pointed out that by the terms of clause (5) of the Article nothing in clause (2) was to be held to affect the provisions of any existing law other than a law to which the provisions of clause (6) applied. His contention was that the provisions of clause (6) only applied to statutes passed within eighteen months of the Constitution coming into force and which had been submitted for the certification of the President. As admittedly this Act had not been so submitted, he contended that it was not a law which came within the provisions of clause (6) and therefore the provisions of clause (2) would have no application to it.

Head Note (1)

30. In my view this statute was clearly a statute within the provisions of clause (6). It was enacted less than eighteen months before the commencement of the Constitution and had it been submitted for the President's certification the protection afforded by clause (6) would have applied to it. As it was not submitted it appears to me clearly implied in clause (6) that the protection therein mentioned is not given to the Act. The Advocate-General stressed the point that clause (6) “does not state what effect non-certification by the President would have on the Act. But it appears to me that it must be implied from the plain terms of the section that if such an Act be not certified then it can be challenged as contrary to the provisions of clause (2) of the Article. If however it has been certified then it cannot be challenged on that ground. That being so, it appears to me clear that this Act is open to challenge on the ground that it does not comply with the provisions of clause (2) of Art. 31.

31. By clause (2) no property can be acquired compulsorily by any law unless the law in the first place provides for compensation and in the second place either fixes the amount of compensation or specifies the principles on which and the manner in which such compensation is to be determined.

Head Note (2)

32. It is to be observed that the word used in the Article is “compensation” and the word is not qualified by any adjective such as “reasonable” or “just”. But it seems to me that the word “reasonable” or “just” qualifying the word “compensation” is really unnecessary because compensation to be compensation must be a reasonable or a just equivalent. In Murray's Oxford Dictionary the expression “to compensate” is defined as “to balance” and compensation means an equivalent and nothing can be an equivalent unless it is something which can reasonably be offered for something else. In my view nothing can be compensation which is unjust or unreasonable, because if it is not a proper equivalent then it is not compensation and anything which is unjust or unreasonable can never be regarded as an equivalent. In my view Art. 31 clause (2) requires a just amount to be given for any property acquired and if the amount which a Jaw gives be not just or reasonable then it cannot be regarded as compensation within that clause.

33. The law must not only provide for compensation, but it must either fix the amount of such compensation or specify the principles on which and the manner in which the compensation is to be determined. The amount fixed as compensation must be a just equivalent, and if the amount is not fixed then the principles on which and the manner in which compensation is to be determined must be principles upon which a just equivalent can be arrived at and the provision for the manner in which the compensation is to be determined must ensure that a just and reasonable amount is given.

34. It has been strongly urged by Mr. Atul Gupta on behalf of the plaintiffs in both the suits that the provisions for compensation m the impugned Act are wholly unreasonable and are clearly in conflict with clause (2) of Art. 31. These provisions which are contained in sec. 8 of the Act have been set out verbatim earlier in this judgment. In proviso (b) to sec. 8 it is provided that the market value of the land is to be ascertained in accordance with the Land Acquisition Act. But if the market value as so calculated exceeds by any amount the market value of the land on December 31, 1946, on the assumption that the land had been at that date in the state in which it in fact was on the date of publication of the notification, the amount of the excess is not to be taken into consideration.

35. It must be remembered that the impugned Act is not a temporary Act and it may well be in force in the year 1960 or in the year 1975. Proviso (b) to sec. 8 would entitle the Provincial Government to acquire land in the year 1951 or in the year 1960 or even in the year 1975 at the market price of the land on December 31, 1946, assuming the land at the date of acquisition was in the same state as it was on December 31, 1946. It is common knowledge that since the end of the War land particularly around Calcutta has increased enormously in Value. When the pace of industrialisation increases land within reasonable reach of the city of Calcutta or other large towns in West Bengal might further increase very considerably in value. Such increase however could in most cases not be taken into account and the owner of the land, even if it was acquired in the year 1951, or later, would only be entitled to the market price of the land on December 31, 1946. The land by the time it is acquired may be double or treble its value in the year 1946. Nevertheless all that the Government would be called upon to pay would be its market value on December 31, 1946.

36. Is compensation assessed in accordance with proviso (b) of sec. 8 determined according to a principle and in a manner which would result in a just or reasonable equivalent being paid for the land? The answer, I think, must be in the negative. The principles on which and the manner in which the compensation is to be determined are in my view wholly arbitrary and the result may have no relation whatsoever to the market value of a land at the date of acquisition. The principles on which and the manner in which compensation is to be determined as laid down in proviso (b) to sec. 8 are no better than if it had been stated that whatever the market value of the land might be it could be acquired at the rate of ‘X’ rupees per bigha or per acre. In my judgment the provisions as to compensation in sec. 8 clearly offend against the provisions of clause (2) of Art. 31 of the Constitution and are therefore void.

37. No objection however could possibly be taken to proviso (b) to sec. 8 if the last portion of the proviso were deleted because then all that the proviso would mean would be that the land should be acquired in, accordance with the provisions of the Land Acquisition Act. It is the latter portion, which makes the market value of the land on December 31, 1946, as the amount payable in every case where its nature has not changed though its value may have greatly increased. I shall consider later what effect the impugned portion of this proviso has upon proviso (b) as a whole and upon the Act as a whole.

38. It was also contended that the provision as to compensation contained in proviso (b) to sec. 8 of the impugned Act was also contrary to Art. 19(1) (f) and Art. 19(5) of the Constitution because it imposed an unreasonable restriction on the right to hold property.

39. Article 31, clause (1) provides that no person can be deprived of his property save by authority of law. Such law must of course comply with clause (2) of that Article, but it is contended that it must also conform to the other provisions of the Constitution. For example, it must be a law upon a subject upon which the legislature is competent to legislate, that is, within some item in the appropriate legislative list of the 7th Schedule. Further, it seems to me that the law must comply with other requirements of the Constitution and must not infringe the fundamental rights of citizens except in so far as the Constitution allows.

40. Art. 19(1) (f) gives every citizen of India a fundamental right, namely, to hold property and no law can be enacted which imposes any restriction on such right other than a restriction reasonably necessary in the interest of the public or for the protection of the interest of scheduled tribes. Mr. Atul Gupta has urged that making land liable to compulsory acquisition upon terms similar to those in proviso (b) to sec. 8 of the impugned Act is imposing a wholly unreasonable restriction on the right to hold property.

41. On the other hand the Advocate-General has contended that Art. 19(1) (f) of the Constitution can have no application to compulsory acquisition of property. He has urged that that is dealt with by Art. 31 which provides for what a law empowering a State to acquire compulsorily must contain. If the provisions of clause (2) of Art. 31 are complied with then the Advocate-General contends that the provisions as to compensation cannot be challenged on any other ground. Further he contended that in any event a statute empowering a State to acquire compulsorily could never be construed as imposing a restriction on the right to hold property. Such a statute would give a right to deprive the citizen of property and the right to deprive a citizen of property can never be regarded as a right to restrict his holding of the property.

42. I do, not think it is necessary to consider this point any further because in my view the latter portion of proviso (b) to sec. 8 of the Act is clearly in conflict with Art. 31(2) and is therefore void. Further it can well be said that where an Article deals specifically, as Art. 31(2) does, with the compensation to be paid, then the provisions as to compensation must be considered with reference to that specific Article and not with reference to any general provisions.

43. It was also contended by Mr. Atul Gupta that the provision in sec. 8 of the impugned Act to the effect that a declaration under sec. 6 of the Act was to be conclusive evidence that the land in respect of which the declaration was made was needed for a public purpose, was ultra vires the Constitution as being in conflict with Art. 19(1) (f) and Art. 19(5) of the Constitution. Again the learned Advocate-General contended that as the Act dealt with compulsory acquisition its validity could not be tested by the provisions of Art. 19 which must be construed as dealing with matters other than compulsory acquisition which is specifically dealt with in Art. 31. Further he contended that a statute empowering a State to acquire compulsorily could not be said to impose restrictions on the right to hold property. Such an Act gave the State a right to deprive a citizen of his property and not to restrict his right to hold the same.

44. It appears to me that the term “reasonable restriction” might well cover deprivation. For example, Art. 19(1) (b) provides that all citizens shall have the right to assemble peaceably and without arms and it seems to me that it might be necessary temporarily to deprive citizens of that right in the interest of public order and a statute so doing, I think, could very well be described as a statute imposing, in the interest of public order, reasonable restrictions on the right to assemble peace-ably and therefore would not offend against Art. 19(3) of the Constitution,

45. Again, Art. 19(1) (c) gives all citizens the right to form associations or unions and no law can be passed if it imposes greater restrictions on such a right than is necessary in the interest of public order or morality. It may well be necessary in the interest of public order to deprive citizens of that right and to prohibit the formation of certain associations or unions and it certainly might be necessary in the interest of morality so to prohibit. An association, for example, with immoral or obscene objects should in the interest of public morality be prohibited and a statute so prohibiting, I think, could well be described as a statute imposing reasonable restrictions on the right to form associations or unions.

46. Similarly, a statute empowering a State compulsorily to acquire property can be said to impose a restriction on the right to hold property. A person who acquires property has a right to hold it until he desires to part with it. A statute empowering a State compulsorily to acquire property does affect the right to hold property. It renders that property liable to be acquired compulsorily and against the wishes of the person who holds it. It is in the true sense a restriction on the right to hold property as it renders the property liable to compulsory acquisition at the instance of the Government or some authority. If that be so, then a statute dealing with compulsory acquisition would have to comply with clause (5) of Art. 19 and if it imposed on the citizen a restriction that was more than necessary in the interest of the general public then such a law would be void.

47. Whether a statute imposes restrictions which are reasonable or unreasonable in the interest of the general public must depend not only upon the substantive provisions in the impugned piece of legislation, but also upon the procedure contemplated in the legislation. The substantive provisions of an Act may be reasonable enough, but the procedure contemplated by the Act might make the enforcement of the provisions wholly unreasonable. For example, an Act might allow the State to detain persons without trial in circumstances which might be perfectly reasonable in the interest of the public. But the procedure for making orders for detention might be so unreasonable as to render the whole Act void. Reasonable substantive provisions might well be rendered wholly unreasonable by the procedure which an Act prescribes. Though it might be reasonable to detain without trial in certain circumstances, it might be wholly unreasonable to give the State a right to detain in-such circumstances leaving it to persons wholly unfitted to decide whether such circumstances exist and to make orders of detention. A statute giving the State a right to detain persons likely to commit subversive acts might well be reasonable. But if the statute gave to a Havildar or a Constable the right to decide whether a person was likely to commit such acts and to make an order of detention then such a statute would, because of the procedure it laid down, be regarded as wholly unreasonable.

48. This view of the law was recently enunciated by the Supreme Court in the case of Dr. N.B Khare (Dr.) v. State Of Delhi (1) [(1950) S.C (C.W.N) 258], Kania, C.J; in the judgment of the Court pointed out that in considering whether restrictions imposed on a citizen's freedom of movement by a law were reasonably necessary in the interests of the general public, the Courts would have to consider not only the substantive provisions of the statute or law, but also the procedure laid down for giving effect to or carrying out such provisions.

49. Section 8 provides that a declaration of the Government that land is required for public purposes is to be final and it may be said that such a provision is unreasonable and arbitrary. A purpose which is not public can never became public merely because the Government declares it to be so and the effect of the provision, it is urged, is to enable the Government to acquire property not only for public purposes but for all purposes, whether public or not, if the Government declared such purposes to be public. In dealing with the questions under this Act it must not be presumed that Government will act dishonestly or contrary to the true interests of its citizens. But there might well be borderline cases where the purpose could not truly be described as public, but nevertheless it is said the Government could acquire the land compulsorily if some ill-informed servant of Government wrongly thought that the purpose was public and a declaration was made accordingly. Mr. Atul Gupta strongly contends that if this provision in sec. 8 of the impugned Act is allowed to remain, then Government is given the right to acquire property compulsorily whether the purpose be public or not, because it can make a purpose which is not public a public one for the purposes of the Act by declaring it to be such.

50. The meaning of the phrase “reasonable restrictions” in Art. 19(6) of the Constitution was considered recently by the Supreme Court in the case of Chinta-man Rao v. The State of Madhya Pradesh (2) [(1950) S.C.R 759 : (1950) S.C.J 571]. At page 573 Mahajan, J., who delivered the judgment of the Court observed:

“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent care and deliberation that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.”

51. The preamble to the impugned Act makes it clear that it was an Act to provide for the acquisition and development of land for public purposes. It may well be said that acquisition for the public purposes mentioned in sec. 2(d) of the Act might not amount to anything more than reasonable restrictions on the right to hold property. However, by sec. 8 the Government by a declaration con make a purpose which is not public a public one and therefore the Act may expose a citizen to compulsory acquisition for purposes not only of a public nature, but which might be of a private nature. The provision that a declaration is conclusive evidence that a purpose is public is, it is contended, purely arbitrary and is inserted with a view to protect Government and to give it a right to acquire property in all circumstances in which the Government thinks proper. A conclusive declaration of the nature of the purpose might well extend the scope of the Act far beyond what the legislature really intended and that being so, this provision does, it is urged, offend against Art. 19(1) (f) and Art. 19(5) of the Constitution and must therefore be held to be ultra vires.

52. It is also contended that the provision contained in the Explanation to proviso (a) to sec. 8 is ultra vires for much the same reasons. Proviso (a) to sec. 8 empowers the Collector, after a declara- tion is made, to take possession 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 the land shall vest absolutely in the State. It is provided in the Explanation that for the purposes of proviso (a) the decision of the Government as to whether any land is or is not waste or arable land shall be final.

53. It follows from this Explanation that ff Government declares arable land to be waste it must be regarded as waste land and presumably valued accordingly, which, it is said, is a provision which is wholly arbitrary. The owner of the land cannot be heard to say that the land is not waste land but on the contrary is arable land. The decision of Government is final and it may well be the decision of an officer of Government who has little, if any, experience in agricultural matters. Land may frequently appear to be waste land, but to an expert eye it might clearly be arable land. Land which is not cultivated at the moment is not necessarily waste land, though it might give every appearance of being such. A provision which leaves the owner of land entirely at the mercy of some Government officer must, it is said, be regarded as unreasonable. The officer concerned may well be perfectly honest, but he may equally have little knowledge of the nature of agricultural land. Once a decision is given that land is waste it can never be questioned with the inevitable result that the land would have to be valued as waste land and not agricultural land which it might well be. Such a procedure leading up to assessment of compensation may well be regarded as arbitrary and seems contrary to all canons of justice. That being so it is contended that this provision also is ultra vires Art. 19(1) (f) of the Constitution in that it exposes the holder of arable land to a possible compulsory acquisition of that land as if it was waste land. The provision gives the owner of the land no right to contest any mistaken decision and to challenge the amount of compensation awarded on that ground.

54. I do not think that it is necessary in this case to decide whether these two provisions in sec. 8 of the Act relating to the purpose of the acquisition and the nature of the land acquired offend against Art. 19(1)(f) and Art. 19(5) of the Constitution. It is not suggested in these two cases that the purposes for which the land was required were other-|wise than public or that any land had been wrongly stated by Government to be of a nature other than its true nature. Therefore no decision on these two impugned portions of sec. 8 of the Act is necessary in order to decide the suits unless of course the whole Act is held to be ultra vires by reason of the fact that invalid provisions contained therein are not severable from the remainder of the Act. It must be remembered that in these cases the Court is exercising a jurisdiction under Art. 228 of the Constitution. It is called upon to decide for the trial Court the constitutional point or points involved in the suits. Whether Art. 31(2) of the Constitution has been infringed is one of the points taken in both suits as it is claimed that the compensation awarded is wholly inadequate and based on a provision in proviso (b) (to sec. 8 of the Act which is void. It is not however alleged in the suits that the purpose for which the land was acquired was not a public one, but on the contrary it was admitted before us that the purpose was clearly a public one. Further it is hot suggested that any arable land has been treated as waste and therefore the Validity or otherwise of these two provisions contained in sec. 8 cannot affect the decisions arrived at in the suits unless the whole Act is held to be ultra vires. Even assuming that these two provisions were ultra vires it would be impossible to hold the whole Act to be void as will appear later. For the purposes of considering whether the whole Act is ultra vires', I shall assume without so holding that these two provisions relating to the purpose and nature of the land in sec. 8 of the Act are ultra vires. If on such an assumption the whole Act cannot be held to be ultra vires it becomes unnecessary to decide definitely whether these two provisions in sec. 8 or either of them are ultra vires and void.

Head Note (3)

55. Lastly it was contended that the impugned Act was ultra vires in that there was no provision made for giving the owners of the land to be acquired com-pulsorily any right to object.

56. As I have said earlier sec. 14 of the Act-empowers the Government to make rules. Sub-sec. (1) of that section reads:

“The Provincial Government may make rules for carrying out the purposes of this Act.”

57. But it is not bound to do so. The West Bengal Government however have made rules and r. 5 of the Rules provides:—

“(1)(a) When the Provincial Government directs the prescribed authority to prepare a development scheme, it shall prepare and submit such scheme to the Provincial Government in accordance with the provisions of sub-rules (2) and (3).

(b) When the Provincial Government authorises a company or a local authority to prepare a development scheme, such company or local authority shall prepare such scheme in accordance with sub-rules (2) and (3) and submit it to the Provincial Government through the Land Planning Committee.

(2) Before submitting any scheme-prepared under sub-rule (1) to the Provincial Government, the committee shall cause a local enquiry to be held in respect thereof by the Collector of the District concerned or any other officer authorised by the Collector in this behalf giving all persons interested an opportunity of making their representations, if any, against the scheme and shall record its own recommendations.”

58. Mr. Atul Gupta on behalf of the plaintiffs has contended that the Act must be regarded as ultra vires as there is no provision in the Act which compels Government to make a rule which would entitle owners of land to raise objections. He concedes that a rule has been made, but as the Act does not contemplate that rules must be made the Act must be held to be ultra vires, though rules have been made in accordance with sec. 14.

59. I do not think that because sec. 14 is not mandatory in terms the Act can be held to be ultra vires. The Government is permitted by that section to make rules and it has made rules and there can be no doubt that at the time when this land was acquired the owners had rights under these rules which when they were made formed part of the Act, and they could make objections against the scheme. That being so it cannot be held that the Act is ultra vires because there is no provision for allowing representations to be made to Government by the owners against the acquisition of this land.

60. The rule itself was also attacked on the ground that it did not provide for notices to be sent to the owners. But r. 5(2) does provide that the Collector must give all persons an opportunity of making their representations and that he can only do by giving due notice of an enquiry. If due notice is given then every one interested including the owners would have an opportunity of making their representations. They are given a right to make representations against the scheme and it was suggested that that does not mean that they could contend that no scheme was necessary, and therefore the acquisition of the land was unnecessary. It appears to me however that if owners are given the right to make a representation against a scheme, they could in the first place say that no scheme was necessary at all and therefore no land should be acquired or in the alternative if a scheme was necessary the scheme proposed went beyond what was necessary or that more land was acquired than the scheme required. In short, the right to make a representation would involve a right to make a representation against not only the details of the scheme, but also against acquisition of the land at all. That, being so, it appears to me that this Act, as it now stands, does give the owners a right to be heard before the land is acquired and therefore it cannot be said to be unreasonable on that ground.

61. For the reasons which I have given it appears to me that the provision in the latter portion of proviso (b) to sec. 8 of the Act limiting the amount of compensation to the market value of the land on December 31, 1946, no matter when the land is acquired, is clearly ultra vires and void. I do not decide that the two other provisions in sec. 8 of the Act relating to the purpose of the acquisition and the nature of the land acquired are ultra vires, but I shall assume that they are, for the purposes of considering Mr. Atul Gupta's fast contention, namely, that the whole Act must be declared to be ultra vires and void.

62. Mr. Atul Gupta has urged that the whole Act is built round the provision that the maximum compensation to be paid is to be the market value of the land on December 31, 1946. He has suggested that Government must have regarded the increase in value of the land in this State as wholly unjustified and that they determined that for all time the market value on December 31, 1946, would be a reasonable price for the land and, therefore, compensation. Mr. Gupta suggested that if this provision for acquiring land cheaply is removed then there is no purpose whatsoever in the Act. Without this provision for acquiring land cheaply the whole Act, he contended, became unnecessary and the acquisition could equally well be made under the Land Acquisition Act which entitles the State to acquire lands compulsorily for any public purpose.

Head Note (4)

63. I think there can be no doubt that the impugned provision fixing the maximum price of the land at its market value on December 31, 1946, is severable from the remainder of the proviso and could be eliminated from the Act leaving the Act quite workable. Without this provision the market value at the date of the notification as ascertained by the provisions of the Land Acquisition Act would apply and therefore the Act would be quite effective.

64. Mr. Gupta however has contended that the effect of holding that a provision of an Act is ultra vires is pot to be determined merely by whether the State could have enacted that piece of legislation without the impugned provision. He has contended that the true test is would the State have enacted the Act without the impugned provision? If the Court is of opinion that the whole Act is really built around the impugned provision and would never have been passed without it then it is contended that the Court should hold the whole Act to be ultra vires.

65. This question of severability was considered by their Lordships of the Privy Council in the comparatively recent case of Attorney-General for Alberta v. Attorney-General for Canada (3) [(1947) A.C 503]. Viscount Simon who delivered the judgment of the Board observed at page, 518:

“There remains the second question, whether when Part II has been struck out from the Act as invalid what is left should be regarded as surviving, or whether, on the contrary, the operation of cutting out Part II involves the consequence that the whole Act is a dead letter. This sort of question arises not infrequently and is often raised (as in the present instance) by asking whether the legislation is ultra vires ‘either in whole or in part’, but this does not mean that when Part II is declared invalid what remains of the Act is to be examined bit by bit in order to determine whether the legislature would be acting within its powers if it passed what remains. The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive, or; as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all. Harvey, C.J, dealt with the second question very briefly and answered it by merely saying that Part I is intra vires. Their Lordships, as just explained, think that notwithstanding the form of the question put the matter cannot be disposed of so summarily.”

66. Applying the test laid down by Viscount Simon in this case I do not think that it can be said that the whole Act is ultra vires, if the three impugned provisions are deleted therefrom. The Act would be still a workable Act and would provide the Government with powers and machinery for acquiring property compulsorily which are not contained in the Land Acquisition Act and to frame schemes for the development of such land. Further it would give the owners a right to obtain leases of the land or to re-purchase the same if it was ultimately found that the land could not be used for the purpose for which it was acquired.

67. It is true that there is little in the Act up to and including sec. 7 which is not in the Land Acquisition Act, Section 8, excluding the impugned provisions, lays down the procedure for taking possession and for fixing the amount of compensation. Section 9 whilst giving the State a right to dispose of the land acquired without development, gives the owners of the land rights which are not given by the Land Acquisition Act or any other statute of general application. Section 10 deals with the powers of the Government to direct the prescribed authority to carry out a scheme or to empower a company or local authority to carry out a scheme at its own cost. Section 11 provides that the Provincial Government, if dissatisfied with the manner in which a company or a local authority is carrying out a scheme, may withdraw the power to carry out such scheme from the local authority or company and make other arrangements for the development.

68. These are provisions which are special to this Act and I do not think it could be said that this Act would never have been passed but for the impugned provisions. It is true that the schemes contemplated by this Act could have been embarked upon after the land had been acquired compulsorily under the Land Acquisition Act. But the impugned Act, even after the offending provisions are excluded, is still a self-contained Act giving the Government rights to acquire property for certain purposes and providing the machinery for executing those purposes. It seems to me that the Government could clearly have enacted the statute without the impugned provisions and further it might well have done so, had it in mind the fact that the impugned provisions would be contrary to the Constitution. Applying the test laid down by Viscount Simon, therefore, it cannot be said that the whole statute is ultra vires by reason of the fact that the three provisions which I have mentioned are or may be ultra vires the Constitution and void.

69. For these reasons it must be held therefore that the West Bengal Land Development and Planning Act, 1948, (Act XXI of 1948) is not in its entirety ultra vires. The provision that the maximum sum payable in respect of such acquisition is to be the market value of the land on December 31, 1946, as provided in proviso (b) to sec. 8 of the Act is ultra vires and the Court below must continue with the hearing of the suits bearing that finding in mind.; What effect our finding will have upon the suits is not a matter which we are at the moment called upon to consider,

70. The records of the two suits must be returned together with a copy of this judgment to the trial court forthwith and that court must now proceed to hear the suits in the light of the observations made in the judgment.

71. The costs of these proceedings will be costs in the suits. The hearing-fee is assessed at fifteen gold mohurs in each application before this Court.

Banerjee, J.:— I agree.

72. 1951, July 25, 26— The Court reviewed the judgment and heard the matter.

73. August 14, 1951.

74. The Judgment of the Court was as follows:—

Harries, C.J:— The petitioners in these two cases had applied to this Court under Art. 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.

75. 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 sec. 8, proviso (b) of the Act was ultra vires, but as the offending portion was severable from the remainder of proviso (6) of sec. 8 the whole proviso was not ultra vires.

76. It was further contended that two other portions of sec. 8 of this Act were ultra vires, namely, the opening portion of sec. 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 s

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

77. The Bench therefore did not come to any definite conclusions as to whether these portions of sec. 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.

78. 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 sec. 8, proviso (a) of the Act. It is said that in order to take possession of these lands the nature of the lands was mis-described by the Collector whose decision is final, if the Explanation to proviso (a) to sec. 8 is intra vires.

79. As there was a clear misunderstanding it was agreed that the previous judgment in these matters should be reviewed and that this Court should decide whether or not these two positions of sec. 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, r. 1 of the Code of Civil Procedure.

80. 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 sec. 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.

81. 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 sec. 6 to the effect that such land is need ed for a public purpose and by sec. 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 sec. 8 that a declaration under sec. 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 sec. 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 Art. 31 of the Constitution of India and clause (1) of that Article pro vides that no person shall be deprived of his property save by authority of law. Clause (2) of Art. 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.”

82. 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 Art. 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 Art. 31 thereof.

83. Clause (2) of Art. 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 proposes. But it seems to me that the effect of Article 31, clause (2) together with item 33 of List I, 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 I the Central Legislature can legislate on acquisition for Union purposes which are obviously public purposes. Item 36 of List II entitles the State ftp 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.

84. 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.

85. The Advocate-General contended that the purposes for which compulsory acquisition of property was allowed by Statute were not justiciable. But it seems to me clear from clause (2) of Art. 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 scrutinize Acts empowering Government to acquire property compulsorily and to consider whether or not such Acts go beyond the power 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.

86. There can, I think, be no doubt that the effect of the opening words of sec. 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.

87. 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 facts the acquisition in question was not for a public purpose and therefore not within the Act at all.

88. Reliance was placed upon the case of Manick Chand Mahata v. Corporation of Calcutta (4) (I.L.R 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 showing 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.

89. 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.

90. 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.”

91. 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 any 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 (4). [(1951) S.C (C.W.N) 1]. In that case the Supreme Court had to construe the words of sec. 3 of the Bombay Land Requisition Ordinance (V 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 ally order of requisition. The proceedings in that case were in respect of an order made before the Constitution came 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.

92. It does not appear to me that Advani's case (4) 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 empowering 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?

Head Note (5)

93. 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 pro- vision 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.

94. In the case of Mohammad Safi v. State of West Bengal (5) (55 C.W.N 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 Advani's case (4) and earlier decisions of this Court and 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.

95. A very similar circumstance arose in the case of A.K Gopalan v. State Of Madras. (6) [(1950) S.C(C.W.N) 407 : (1950) S.C.R 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 per mitted.

96. The position is much the same in this case. The effect of making the satisfaction of Government 011 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 acquisitions not warranted under the Constitution.

97. 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.

98. 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 pro vision 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 seotion 8. The opening words of section 8 after eliminating the offending words would ready:

“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.”

Head Note (6)

99. 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.

100. 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.

101. 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.

102. 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,”

103. 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.”

104. 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.

105. 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 sec. 8.

106. Mr. Atul Gupta on behalf of the Opposite Parties does not now contend that the Explanation to proviso (a) of sec. 8 affects the question of compensation because the Explanation to proviso (a) opens with these words, “For the purpose 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 (6) of sec. 8 relating to compensation and this is now conceded,

107. 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 Article 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.

108. 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 of 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 vines 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.

109. The learned Advocate-General contended that Aricles 19(1)(f) and 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 poiint can, I have said, be decided on other grounds.

110. 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.

111. 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 with the utmost speed and that more food should be produced and grown for the rapidly extending population of the State.

Head Note (7)

112. 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 fn 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 sec. 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.

113. 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 Art, 19(1) (f) and Art. 19(5) of the Constitution.

114. In the result therefore I hold that the provision in sec. 3 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 sec. 8 does not offend against the Constitution and is therefore intra vires and valid.

115. It was held in the original judgment that the provision in the concluding portion of proviso (b) at sec. 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.

116. The result of the two judgments therefore is that the concluding portion of pro viso (b) of sec. 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 sec. 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,

117. 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.

118. 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.

119. We had already directed that the costs of the earlier proceedings will be costs in the suits.

120. We direct that the costs of this further hearings 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.

121. We certify under Art. 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.:— I agree.

A.K.D.G