Patanjali SASTRI, C. J. - (1.) This is an appeal from a judgment of the High Court of Judicature at Calcutta declaring certain provisions of the West Bengal Land Development and Planning Act. 1948 (hereinafter referred to as the "impugned Act") unconstitutional and void.
(2.) The impugned Act was passed on October 1, 1948, primarily for the settlement of immigrants who had migrated into the Province of West Bengal due to communal disturbances in East Bengal, and it provides for the acquisition and development of land for public purposes including the purpose aforesaid. A registered Society called the West Bengal Settlement Kanungoe Co-operative Credit Society Ltd., Respondent No. 4 herein, was authorized to under-take a development scheme, and the Government of the State of West Bengal, the appellant herein, acquired and made over certain lands to the Society for purposes of the development scheme on payment of the estimated cost of the acquisition. On July 28, 1950, the Respondents 1 to 3, the owners of the lands thus acquired, instituted a suit in the Court of the Subordinate Judge, II Court at Alipore, District 24-Parganas, against the Society for a declaration that the impugned Act was void as contravening the Constitution and that all proceedings taken thereunder for the acquisition aforesaid were also void and of no effect and for other consequential reliefs. The State of West Bengal was subsequently impleaded as a defendant. As the suit involved questions of interpretation of the Constitution, Respondents 1 to 3 also moved the High Court under Art. 228 of the Constitution to withdraw the suit and determine the constitutional question. The suit was accordingly transferred to the High Court and the matter was heard by a Division Bench (Trevor Harries C. J. and Benerjee J.) who by their final judgment held that the impugned Act as a whole was not unconstitutional or void save as regards two of the provisions contained in S. 8 which, so far as it is material here, runs as follows: "A declaration under S. 6 shall be conclusive evidence that the land in respect of which the declaration is made is needed for a public purpose and after making such 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 as far as may be apply Provided that-* * * (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 S. 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 S. 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". The provision making the declaration of the Government conclusive as to the public nature of the purpose of the acquisition and the limitation of the amount of compensation so as not to exceed the market value of the land on December 31, 1946, were declared 'ultra vires' the Constitution and void.
(3.) The Attorney-General, appearing for the appellant, rightly conceded that inasmuch as Art. 31(2) made the existence of a public purpose a necessary condition of acquisition, the existence of such a purpose as a fact must be established objectively, and the provision in S. 8 relating to the conclusiveness of the declaration of Government as to the nature of the purpose of the acquisition must be held unconstitutional but he contended that the provisions was saved by Art. 31 (5) of the Constitution which provides:"Nothing in clause (2) shall affect-(a) the provisions of any existing law other than a law to which the provisions of Cl. (6) apply, or ....... ." Clause (6) reads thus: "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 certified, 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 S. 299 of the Government of India Act. 1935". It was argued that the impugned Act having been passed within 18 months before the commencement of the Constitution and not having been submitted to the President for his certification, it was a law to which the provisions of Cl. (6) did not apply and, therefore, as an existing law, the impugned Act was not affected by Cl. (2) of that article. The argument is manifestly unsound. Article 31 (6) is intended to save a State law enacted within 18 months before the commencement of the Constitution provided the same was certified by the President, while, Art. 31(5) saves all existing law passed more than 18 months before the commencement of the Constitution. Reading the two clauses together, the intention is clear that an existing law passed within 18 months before January 26, 1950 is not to be saved unless it was submitted to the President within three months from such date or his certification and was certified by him. The argument, if accepted, would reduce Art. 31 (6) to a meaningless redundancy.;