D.K. Seth, J - (1.) The Question: Mr. Debayan Bera, learned counsel for the petitioner has challenged the vires of the proviso to Section 9 (3B) of Land Acquisition Act, 1894 (hereinafter referred to as the 1984 Act), as amended in West Bengal by Land Acquisition (West Bengal Amendment) Act, 1997. According to him by reason of West Bengal Act XXV of 1996, introducing Section 7A in West Bengal Land (Requisition and Acquisition) Act, 1948 being Act II of 1948, (hereinafter referred to as the 1948 Act), a notice issued under Section 4(1 a) of 1948 Act shall stand lapsed unless award is made within 3 years from the date of publication of the notice, if issued after 1st of April, 1992 or within one year from 1st of April, 1994 if issued 2 years before 1st of April, 1994. Thus, the proviso providing calculation of compensation on the basis of the valuation on the date of issue of notice under Section 4(1 a) of Act II of 1948 has two impact. One in respect of notices under Section 4(l a) of the 1948 Act which are valid and have not lapsed by reason of Section 7A of the 1948 Act, can very well be treated as good law. But the other would revive a lapsed notice without amending Section 7A of 1948 Act at a point of time when 1948 Act itself had lapsed and a notice issued under Section 4(1 a) could not be revived when the Act itself stood effaced. Thus, in such case even if Section 9(3 B) of 1894 Act is resorted to, but the basis for calculation of compensation shall be the date of issue of notice under sub-section (3 B) of that Act. Submission by respondent :
(2.) This contention has, however, been resisted by Mr. A.N. Banerjee for the respondent on the ground that in view of the decision in Samarendra Nath Paul v. West Bangal Housing Board, 2000 (2) CHN 771: 2000 (3) Indian Civil Cases (Cal.) 594, the question is no more a res Integra. It is already held in the said decision that the provisions of 1948 Act has been validated for keeping alive the acquisition of the land through enactment of Land Acquisition (West Bengal Amendment) Act, 1997. The effect of proviso to Section 9(3 B) of 1894 Act is not reviving the notice under Section 4(la) of 1948 Act. It only fixes a date on which the basis of calculation of compensation is founded. It is almost similar to the provision as provided in Section 23 of 1894 Act. He has also relied on the decision in Abodh Behari Yadav v. State of Bihar and Ors., AIR 1996 Supreme Court 122, to contend that where possession is already taken non- publication of an award would not have the effect of lapse of the acquisition proceedings. He contended that on the issue of the notification under Section 4(1 a) of 1948 Act the land stood vested in the Government. Once vested cannot be divested. On this principle by reason of the proviso to Section 9(3 B) of the 1894 Act the proceeding is revalidated and as such the principle laid down in Abodh Behari (supra) is attracted. Alternatively, he contended that the decision in Abodh Behari (supra) proceeds on the footing that the possession of the land has been taken, as was the case in the said decision where possession was taken under Section 17(1) of 1894 Act. Thus, there is no question of lapse of notice under Section 4(l a) of 1948 Act. He then relied on the decision in State of Tamil Nadu v. L. Krishnan & Ors., AIR 1996 Supreme Court 497 : 1996(1) Indian Civil Cases (S.C.) 140, in order to contend that delay in passing award is not fatal to the notification under Section 4 of 1894 Act since the owners of the land are well protected under Section 48A and Section 23 (1 A) of the 1894 Act. According to him the ratio decided in L. Krishnan (supra) can be well attracted in respect of the proviso to Section 9(3 B) since the compensation under the said provision is to be calculated according to Section 23 countervailing protection of Section 48A of the 1894 Act, by reason of Land Acquisition (West Bengal Amendment) Act, 1997 through which requisition made under 1948 Act, is brought within the purview of the 1894 Act, Mr. Banerjee had also cited the decision in State of Tamil Nadu v. Mahalakshmi Ammal, AIR 1996 Supreme Court 866: 1996(1) Indian Civil Cases (S.C.) 908. Relying on this decision he had again attempted to substantiate that the delay in making award would not vitiate the proceedings. He then placed reliance on U.P. Jal Nigam, Lucknow v. Kalra Properties Pvt. Ltd., AIR 1996 Supreme Court 1170 1996(2) Indian Civil Cases (S.C.) 534, to contend that where possession is taken, Section 11A prescribing limitation for passing award resulting into lapse of the proceeding, is not attracted. On the same principle the proviso to Section 9 (3B) of 1894 Act cannot be held to be ultra vires. He had also relied on the decision in Starling S. Brokers v. State of West Bengal, 2001 (1) CHN 531, of the Division Bench and submitted that in view of the ratio decided therein the question raised by Mr. Bera can no more be gone into by this Court. The Reply :
(3.) In reply, Mr. Bera had contended that the decisions relied on by Mr. Banerjee has no manner of application where the particular proviso, on which the foundation is being sought to be based under Section 9(3 B) of 1894 Act is no more in the statute. In other words the statute being non-existent the same cannot be revived by implication through any manner in a different statute. It is only the proceedings under Act II of 1948 which was revalidated and brought within the purview of 1894 Act. It cannot revive any other provisions of the 1948 Act. On the other hand it would have the effect of reviving a lapsed statute. I have heard the learned counsel of the respective parties at length. Facts :;