The Judgment of the Court was delivered by
P.N Mookerjee, J.:— These two appeals arise out of proceedings for acquisition of land under the West Bengal Land (Requisition and Acquisition) Act, 1948 (West Bengal Act II of 1948).
2. First Appeal No. 18 of 1953 arises out of L.A Case No. 159 of 1952 of the court of the District Judge, Nadia, in which the respondent Murari Mohan Biswas was the claimant. That was a reference at the instance of the said claimant against the valuation and award of compensation by the Collector in Land Acquisition Case No. 65 of 1947–48 in respect of 26 and 24 decimals of Bagan land with trees etc. within C.S Plots Nos. 296 and 297 respectively of mouza Ghurni, situate within the Zrishnagar Municipality. The total compensation, awarded by the Collector was Rs. 1,357-13-0. The other appeal, namely, First Appeal No. 19 of 1953, arose out of L.A Case No. 160 of 1952 of the said court of the District Judge, Nadia, which was a reference at the instance of the claimant Sudhir Kumari Devi who did not accept the Collector's valuation and award of compensation of Rs. 341/- in respect of 7 decimals of Bagan land with trees etc. within C.S Plot No. 587 of the same Mouza Ghurni.
3. The reference were accepted in part and the learned District Judge enhanced the Collector's award in the two cases by Rs. 365-10-0 and Rs. 94/- respectively. Feeling aggrieved, the State has come up on appeal. The claimants respondents have accepted the enhanced awards, as made by the learned District Judge, and have not filed any cross-appeal or cross-objection.
4. The only ground, on which the reference were allowed by the learned District Judge, was that sec. 7(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948, which, by its second proviso, fixed, in effect, the market value of the acquired land as on December 31, 1946, whatever the date of the acquisition or of the notification or publication of notice, was ultra vires and void to that extent and that, accordingly, the Collector was wrong in valuing the acquired lands as on December 31, 1946, and should have valued them with reference to values in 1949 when the notice under sec. 4(1) was published. The enhancement granted by the learned District Judge represented the difference in values between 1946 and 1949. The only point, therefore, which has to be considered in these appeals is whether the learned District Judge was right in his above view of the statute, namely, of sec. 7(1), second proviso, West Bengal Land (Requisition and Acquisition) Act, 1948, there being no question that, on the materials on record, the learned Judge's figures of valuation for 1949 cannot be successfully challenged.
5. In holding that the proviso in question was ultra vires, the learned District Judge relied on the decision of this Court in the case of West Bengal Settlement Kanungoe Co-operative Society Ltd. v. Mrs. Bela Banerjee, (1) 55 C.W.N 778 and applied the same upon the erroneous assumption that the impunged Act in the present case, namely, West Bengal Act II of 1948, had come into force within 18 months prior to the Constitution. The assumption was clearly wrong and evidently a miscalculation, the Act having come into force on March 11, 1948, as noted by the learned District Judge himself. The case cited is, therefore, no authority for the view of the learned District Judge. That, however, is not very material as, notwithstanding the said mistake and miscalculation, the ultimate conclusion of the learned District Judge seems to be correct.
6. It is common ground that the amended Art. 31(2) of the Constitution, that is, as it stands after the Fourth Amendment of the Constitution in 1955, is not relevant here. This, indeed, is plain as the relative amendment appears to be prospective and to have no retrospective operation, having regard particularly to its character and language. We would, therefore, leave it aside for our present purpose.
7. The Act before us which contains the impunged proviso was passed, as we have said above, on March 11, 1948. At that time, the Government of India Act, 1935, was the constitutional enactment in force. Sec. 299(2) of that Act ran as follows:
“(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.”
8. In the above state of the law, a legislative enactment for acquisition of property, in order to be valid, had to provide, inter alia, for payment of compensation and compensation, in the light of the decisions of this Court, cited by the learned District Judge, namely, (1) 55 C.W.N 778 supra, as affirmed by the Supreme Court in the case of State of West Bengal v. Mrs. Bela Banerjee, (2) (1954) S.C.A 41 would mean the market value of the acquired property at or about the time of acquisition. The decision was, undoubtedly, given under Art. 31(2) of the Constitution, as it stood before the Amendment, namely:
“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.”
9. But, having regard to the terms of the two provisions and their nature, the same meaning must be given to the word ‘compensation’ in both sec. 299(2) of the Government of India Act, 1935, and Art. 31(2) of the Constitution, as set out above. Viewed in that light, the market value in December 1946, no matter when the acquisition is made, that is, without reference to the time of acquisition which, in the present case, was the year 1949, would not be compensation within the meaning of either sec. 299(2) of the Government of India Act, 1935, or Art. 31(2) of the Constitution. The impunged proviso to sec. 7(1) of the West Bengal Act II of 1948 would, therefore, be invalid prior to the Constitution and would remain so after the Constitution also unless it is saved or to be more accurate, validated by some other provision.
10. It is argued on behalf of the appellant State that the impunged proviso is protected by Clause (5) of Art. 31 and that the learned District Judge was in error in holding that it was outside the said protective Clause, coming, as it did, according to him, within the excepted Clause (6), the limited protection whereunder also was not available to it, there having been no compliance with the requisite conditions. Mr. Majumdar argues that clause (6) has no application in this case as the impugned Act was passed more than 18 months before the Constitution and it did not, therefore, come within the said Clause (6) and, accordingly, compliance with the conditions, laid down therein, for immunity from challenge, was not necessary, so far as the impugned proviso was concerned. That is undoubtedly correct. The point, therefore, is whether the proviso is saved or validated by Clause (5). To that, in our opinion, the answer must be in the negative. Clause (5) saves an existing law. “Existing law” is defined in the Constitution itself subject, of course, to certain prefatory words, to which we shall duly refer hereinafter, as follows:
“‘Existing law’ means any law, Ordinance, Order, by-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, Order, by-law, rule or regulation” [Vide Art. 366(10)]. To be an existing law, therefore, the particular provision must have been enacted by a Legislature or authority, having power to make the same. As however, as stated above, the impugned Act was in contravention of sec. 299(2) of the Government of India Act, 1935, which was the constitutional enactment, then in force, and under which no Legislature had power to make a law contrary to its terms, the Provincial Legislature, which enacted the Act in question, namely, West Bengal Act II of 1948, had no power to enact the impugned proviso. That proviso, therefore, cannot be regarded as an existing law for purposes of Art. 31(5) and the protection under that Clause would not be attracted to it.
11. It is true that the definition Article (Art. 366) opens with the words “In this Constitution, unless the context otherwise requires…………”, so that the definitions that follow are not absolute and the defined expressions may have other meanings if the context so requires. But we do not think that, on such consideration, it is necessary to give a different meaning to the expression ‘existing law’ as used in Art, 31(5). Acquisition of property without providing for payment of compensation is prima facie unjust, being tantamount to deprivation of property, and sec. 299(2) of the Government of India Act, 1935, was directed to prevention of that injustice. In that context, it is reasonable to hold that Art. 31 of the Constitution of India did not intend to validate an enactment which was invalid before the Constitution, being in contravention of sec. 299(2), except to the limited extent as expressly mentioned in Clause 6 of the Article.
12. Such an enactment would be invalid before the Constitution and would remain so except where it was passed not more than eighteen months before the Constitution and was submitted in and certified by the President as required bp Clause (6) of Art. 31. It would not be an ‘existing law’ for purposes of Clause (5) of that Article but it would still come within the expression ‘law of the State’ as used in Clause (6), that expression being, in our opinion, wider than ‘existing law’ as used in Clause (5). In that view, we do not think that the context —not excluding Clause (6)—requires a different meaning to be given to the expression ‘existing law’ in Clause (5) so as to justify a departure from its ordinary connotation as attributed to it by the Constitution in the definition Clause [Art. 366(10)]. It is to be remembered also in the above connection that Art. 31(2) of the Constitution, as its language shows, is wider in scope than its predecessor sec. 299(2) of the Government of India Act, 1935, and that lends further support to the above point of view.
13. Construed as above, Clause (5) of Art. 31 of the Constitution would give no validity or protection to the impugned proviso which is otherwise plainly invalid in view of sec. 299(2) of the Government of India Act, 1935. These appeals, therefore, fail and they are dismissed.
14. There will be no order for costs in F.A No. 18 of 1953, in which the claimant respondent has not entered appearance, but, in the other Appeal (F.A No. 19 of 1953), the appearing claimant respondent will get her costs from the appellant State, hearing-fee being assessed at three gold-mohurs.
Sarkar, J.:— I agree.
S.K.B