Harries, C.J.
1. 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 Ct. under Article 228 of the Constitution. The suits it was said involved difficult constitutional points, and after hearing the parties this Ct. came to the conclusion that points of importance and difficulty arose in the cases which Article 228 of the Constitution required the H. C to decide.
2. We have now heard the parties upon the constitutional question involved and as the points are common to both the suits it will be convenient to dispose of both the matters in one judgment.
3. The suits were brought by 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 [21] of 1948). In the suits it was prayed that the notfn. Under Section 4 and the declaration Under Section 6 of Act XXI [21] 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 pltfs. 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 defts. from further interfering with the pltfs'. possession.
4. To appreciate the points involved it will be necessary shortly to set out the facts which gave rise to this litigation. The defts. in both the suits were the West Bengal Settlement Kanungoes Cooperative Credit Society Ltd.
5. In November 1949 the defts. apld. to the Govt. of West Bengal for authorisation to undertake a development scheme Under Section 5 (1), West Bengal Land Development and Planning Act, 1948. The Govt. made a notfn. Under Section 4 of the Act and after hearing objections of the persons affected by the notfn. the Special Land Acquisition Collector of 24 Parganas submitted a report. The West Bengal Govt. approved the detailed scheme and lay out plan of the applt. (sic) society and directed the Collector of 24 Parganas to submit an estimate of the cost of acquisition and to make a declaration forthwith Under Section 6 of the Act. The Govt. 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 Section 6 of the Act was published in March 1950 and the Govt. of West Bengal took possession of the lands.
6. Later, in the month of March 1950. the deft. society entered into an agreement with the Govt. as contemplated in Section 10 (2) of Act XXI [21] of 1948. The deft. on payment of the estimated costs of acquisition of the whole of the lands, namely, Rs. 1,73628-1 10 took possession of the land and entered into contracts with builders for the purposes of developing the said land.
7. The pltfs. thereupon brought the suits claiming possession of the lands and declarations that all the proceedings under Act XXI [21] of 1948 were void and of no effect and that the Act itself was ultra vires the Constitution.
8. Before us it has been contended on behalf of the pltfs, 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 ulra vires if such were severable from the remaining provisions of the Act.
9. The Act in question, namely, the West Bengal Land Development and Planning Act, 1948 is a comparatively short Act which empowers the Govt. 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 7-10-1948.
10. Section 2 is the definition section and by Section 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 o 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, fisheries and industries.'
11. 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 such immigrants. It is not suggested on behalf of 'the pltfs. that the land was not acquired for any of these purposes.
12. 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 Govt. by notfn. in the official gazette, to declare any area specified in the notfn. 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 section directs that the Colr. shall cause public notice of the substance of such notfn. to be given at convenient places in the locality. After such notfn. has been made the persons authorised by Govt. are given powers to enter upon the property, the subject-matter of the notfn. for the purposes of surveying etc.
13. Section 5 of the Act empowers the State Govt. to direct the prescribed authority appointed Under Section 3, or, if it so thinks fit in any case, authorise any co. 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 Govt. Sub-section (2) of Section 5 empowers the Govt. to sanction such a scheme with or without modification.
14. Section 6 provides that when a development scheme has been sanctioned and the Govt. 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 Govt. 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.
15. Section 7 provides that in cases of urgency the State Govt. may make a declaration Under Section 6, though no development scheme has either been prepared or sanctioned Under Section 5.
16. Section 8 provides that a declaration Under Section 6 shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose and provides that after such declaration the Govt. may acquire the land and thereupon the provisions of the Land Acquisition Act shall, so far as may be, apply.
17. Then follow two provisos which it is necessary to set out in extenso: ' Provided that
(a) if in any case the Provincial Govt. so directs, the Colr. 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 (now the State) free from all encumbrances;
Expln.--For the purposes of this clause the decision of the Provincial Govt. as to whether any laud 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 refd. to in Clause 1 of Sub-section (1) of Section 28 of the said Act shall be deemed to be the market value of the land on the date of publication of the notfn. 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 31-12-1946, 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 notfn. the amount of such excess shall not be taken into consideration.'
18. Section 9 empowers the Govt. 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 Govt. 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 Govt. If two or more persons claim to exercise the right to obtain a lease or to repurchase, the right shall be exercisable by such claimant as the Govt. may determine.
19. Section 10 empowers the Govt. 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 Colr. If on the other hand the Govt. empowers a co. or a local authority to execute such a scheme, it may authorise such co. or local authority to dispose of the lands.
20. Section 11 provides that the Govt. if satisfied that a co. 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 co. or local authority and may make other arrangements for its execution.
21. Section 12 is an immunity section and Section 13 allows the State Govt. to delegate its powers. Section 14 is the rule-making section which empowers the Govt. to make rules for carrying out the purposes of the Act A Section 15 provides that any orders made under the Ordinance which the Act superseded will be deemed to have been made under the Act.
22. No objection is or indeed can be taken to Sections 1 to 6 of the Act; but it is contended that portions of Section 8 are ultra vires the Const. Ind. In Section 8 it is provided that a declaration made Under Section 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 Const. Ind. to hold land and therefore is contrary to the provisions of Article 19(1)(f) and Article 19(5) of the Constitution.
23. Objection is also taken to the Expln. to proviso (a) of Section 8 which provides that for the purposes of proviso (a) which entitles the Colr, to take possession of various kinds of land, the decision of the Provincial Govt. 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 Article 19(1)(f) and 19(5) of the Constitution.
24. Further it is suggested that the provision in the proviso (b) to Section 8 limiting the amount of compensation, no matter when the land was acquired, to the market value of the land as ascertained on 31-12-1946, is contrary to Article 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.
25. 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 Govt. made a declaration Under Section 6 of the Act. It was conceded however that rules had been made Under Section 14 of the Act and Sub-Rule (2) of Rule 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.
26. The Act as I have said came into force on 7-10-1948, that is within eighteen months of the Constitution of the Republic of India coming into force. Compulsory acquisition of land is dealt with in Article 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.
27. Clause (5) of the Article provides that nothing in Clause (2) shall affect the provisions of any existing law other than a law 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 notfn. so certifies, it shall not be called in question in any Ct. 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, Govt. of India Act, 1935.'
28. Sub-section (2) of Section 299, Govt. of India Act, 1985 is very similar in terms to Clause. (2) of Article 31 of the Constitution.
29. This Act of the State of West Bengal could therefore under Article 31(6) have been submitted to the President for his certification and upon certification it could not have been questioned in any Ct. 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 Article 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.
30. 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.
31. 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 appld. 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 pro-visions 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 Article 31.
32. 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.
33. 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 not necessary 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 some-thing 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, Article 31 Clause. (2) requires a just amount to be given for any property acquired and if the amount which a law gives be not just or reasonable then it cannot be regarded as compensation within that clause.
34. 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.
35. It has been strongly urged by Mr. Atul Gupta on behalf of the pltfs. in both the suits that the provisions for compensation in the impugned Act are wholly unreasonable and are clearly in conflict with Clause. (2) of Article 31. These provisions which are contained in Section 8 of the Act have been set out verbatim earlier in the judgment. In proviso (b) to Section 8 it is provided that the market value of the land is 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 31-12-1946 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 notfn. the amount of the excess is not to be taken into consideration.
36. 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 Section 8 would entitle the Provincial Govt. 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 31-12-1946 assuming the land at the date of acquisition was in the same state as it was on 31-12-1946. 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 31-12-1946, The land by the time it is acquired may be double or treble its value in the year 1946. Nevertheless all that the Govt. would be called upon to pay would be its market value on 31-12-1946. 37. Is compensation assessed in accordance with proviso (b) of Section 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 Section 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 Section 8 clearly offend against the provisions of Clause. (2) of Article 31 of the Constitution and are, therefore void.
38. No objection however could possibly be taken to proviso (b) to Section 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 31-12-1946 as the amount payable in every case were its nature had 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.
39. It was also contended that the provision as to compensation contained in proviso (b) to Section 8 of the impugned Act was also contrary to Article 19(1)(f) and Article 19(5) of the Constitution because it imposed an unreasonable restriction on the right to hold property.
40. 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 Schedule 7. Further, it appears to me that the law must comply with other requirements of the Constitution and mast not infringe the fundamental rights of citizens except in so far as the Constitution allows.
41. Article 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 Section 8 of the impugned Act is imposing a wholly unreasonable restriction on the right to hold property.
42. On the other hand, the Advocate-General has contended that Article 19(1)(f) of the Constitution can have no application to compulsory acquisition of property. He has urged that that is dealt with by Article 31 which provides for what a law empowering a State to acquire compulsorily must contain. If the provisions of Clause. (2) of Article 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.
43. I do not think it is necessary to consider this point any further because in my view the latter portion of proviso (b) to Section 8 of the Act is clearly in conflict with Article 31(2) and is, therefore, void. Further it can well be said that where an Article deals specifically, as Article 31(2) does, with the compensation to be paid, then the provisions as to compensation must be consd. with reference to that specific Article and not with reference to any general provisions.
44. It was also contended by Mr. Atul Gupta that the provision in Section 8, Impugned Act, to the effect that a declaration Under Section 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 Article 19(1)(f) and Article 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 Article 19 which must be construed as dealing with matters other than compulsory acquisition which is specifically dealt with in Article 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.
45. It appears to me that the term 'reason-able restriction' might well cover deprivation for example Article 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 orders, reasonable restrictions on the right to assemble peaceably and therefore would not offend against Article 19(3) of the Constitution.
46. Again Article 19(1)(c) gives all citizens the right to form assocns. or unions and no law can be passed if is 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 assocns. or unions and it certainly might be necessary in the interest of morality so to prohibit. An assocn. 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 assocns, or unions.
47. 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 Govt. or some authority. If that be so, then a statute dealing with compulsory acquisition would have to comply with Clause. (5) of Article 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.
48. 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.
49. This view of the law was recently enunciated by the S. C. in the case of Dr. N. B. Khare v. State of Delhi, 1950 S. C. R. (C. W. N. Sup.) 258, Kania C. J. in the judgment of the Ct. 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 Cts. 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.
50. Section 8 provides that a declaration of the Govt. that land is require 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 become public merely because the Govt. declares it to be so and the effect of the provision it is urged is to enable the Govt. to acquire property not only for public purposes but for all purposes whether public or not, if the Govt. declared such purposes to be public. In dealing with the questions under this Act, it must not be presumed that Govt. will act dishonestly or contrary to the true interests of its citizens. But there might well be borderline cases whether the purpose could not truly be described as public, but nevertheless it is said the Govt. could acquire the land compulsorily if some ill-informed servant of Govt. wrongly thought that the purpose was public and a declaration was made accordingly. Mr. Atul Gupta strongly contends that if this provision in Section 8 of the impugned Act is allowed to remain then Govt. 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.
51. The meaning of the phrase 'reasonable restrictions' in Article 19(6) of the Constitution was consd. recently by the S. C. in the case of Chintamanrao v. The State of Madhya Pradesh, (1950) S. C. J. 571. At p. 573 Mahajan J. who delivered the judgment of the Ct. 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.'
52. 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 Section 2 (d) of the Act might not amount to anything more than reasonable restrictions on the right to hold property. However, by Section 8 the Govt. by a declaration can 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 Govt. and to give it a right to acquire property in all circumstances in which the Govt. 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 argued, offend against Article 19 (1) (f) and Article 19 (5) of the Constitution and must therefore be held to be ultra vires,
53. It is also contended that the provision contained in the Expln. to proviso (a) to Section 8 is ultra vires for much the same reasons. Proviso (a) to Section 8 empowers the Colr, after a declaration 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 Expln. that for the purposes of proviso (a) the decision of the Govt. as to whether any land is or is not waste or arable land shall be final.
54. It follows from this Expln. that if Govt. 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 Govt. is final and it may well be the decision of an officer of Govt. 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 Govt. 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, Article 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.
55. I do not think that it is necessary in this case to decide whether these two provisions in Section 8 of the Act relating to the purpose of the acquisition and the nature of the land acquired offend against Article 19(1)(f) and Article 19(5) of the Constitution. It is not suggested in these two cases that the purposes for which the land was required were otherwise than public or that any land had been wrongly stated by Govt. to be of a nature other than its true nature. Therefore, no decision on these two impugned portions of Section 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 Ct. is exercising a jurisdiction under Article 228 of the Constitution. It is called upon to decide for the trial Ct. the constitutional point or points involved in the suits. Whether Article 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 Section 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 not suggested that any arable land has been treated as waste and therefore the validity or otherwise of these two provisions contained in Section 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 Section 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 Section 8 or either of them are ultra vires and void.
56. 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 compulsorily any right to object.
57. As I have said earlier, Section 14 of the Act empowers the Govt. to make rules. Sub-section (1) of that section reads : 'The Provincial Govt. may make rules for carrying out the purposes of this Act.'
58. But it is not bound to do so. The West Bengal Govt. however have made rules and Rule 5 of the Rules provides :
'(1) (a) When the Provincial Govt. directs the prescribed authority to prepare a development scheme, it shall prepare and submit such scheme to the Provincial Govt. in accordance with the provisions of Sub-rules (2) and (8).
(b) When the Provincial Govt, authorises a co. or a local authority to prepare a development scheme, such co. or local authority shall prepare such scheme in accordance with Sub-rules (2) and (3) and submit it to the Provincial Govt. through the Land Planning Committee.
(2) Before submitting any scheme prepared under Sub-rule (1) to the Provincial Govt. the Committee shall cause a local enquiry to be held in respect thereof by the Colr, of the District concerned or any other officer authorised by the Colr, in this behalf giving all persons interested an opportunity of making their representations, if any, against the scheme and shall record its own recommendations.'
59. Mr. Atul Gupta on behalf of the pltfs. has contended that the Act must be regarded as ultra vires as there is no provision in the Act which compels Govt. 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 Section 14.
60. I do not think that because Section 14 is not mandatory in terms the Act can be held to be ultra vires. The Govt. 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 Govt. by the owners against the acquisition of this land.
61. The rule itself was also attacked on the ground that it did not provide for notices to be sent to the owners. But Rule 5 (2) does provide that the Colr, 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 everyone 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 un-reasonable on that ground.
62. For the reasons which I have given it appears to me that the provision in the latter portion of proviso (b) to Section 8 of the Act limiting the amount of compensation to the market value of the land on 31-12-1946, no matter when the land is acquired, is clearly ultra vires and void. I do not decide that the two other provisions in Section 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 last contention, namely, that the whole Act must be declared to be ultra vires and void.
63. Mr. Atul Gupta has urged that the whole Act is built round this provision that the maximum compensation to be paid is to be the market value of the land on 31-12-1946. He has suggested that Govt. 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 31-12-1946 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.
64. I think there can be no doubt that the |impugned provision fixing the maximum price of the land at its market value on 31-12-1946, 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 notfn. as ascertained by the provisions of the Land Acquisition Act would apply and therefore the Act would be quite effective.
65. Mr. Gupta however has contended that the effect of holding that a provision of an Act is ultra vires is not 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 Ct. 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 Ct. should hold the whole Act to be ultra vires.
66. This question of severability was consd. by their Lordships of the P. C. in the comparatively recent case of Attorney General for Alberta v. Attorney General for Canada, (1947) A. C. 503. Viscount Simon who delivered the judgment of the Board observed at p. 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 intra 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.'
67. 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 Govt. 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 should 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.
68. It is true that there is little in the Act up to and including Section 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 Govt. to direct the prescribed authority to carry out a scheme or to empower a co. or local authority to carry out a scheme at its own cost. Section 11 provides that the Provincial Govt. if dissatisfied with the manner in which a co. or a local authority is carrying out a scheme may withdraw the power to carry out such scheme from the local authority or co. and make other arrangements for the development.
69. 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 Govt. rights to acquire property for certain purposes and providing the machinery for executing those purposes. It seems to me that the Govt. 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.
70. For these reasons, it must be held therefore that the West Bengal Land Development and Planning Act, 1948, (Act XXI [21] 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 81-12-1946, as provided in proviso (b) to Section 8 of the Act is ultra vires and the Ct. 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.
71. The records of the two suits must be returned together with a copy of this judgment to the trial Ct. forthwith and that Ct. must now proceed to hear the suits in the light of the observations made in the judgment.
72. The costs of these proceedings will be costs in the suits. The hearing fee is assessed at fifteen gold mohurs in each appln. before this Ct.
Banerjee, J.
73. I agree.