Datta, J. - (1.) This is an appeal against the judgment and order of Anil Kumar Sen, J. dated March 23, 1973 discharging the rule obtained by the Board of Trustees for the Improvement of Calcutta (hereinafter referred to as the Board) against an award made by the Tribunal constituted under Section 70 of the Calcutta Improvement Act. 1911 for performing the functions of the Court in reference to the acquisition of land for the Board under the Land Acquisition Act 1894 (hereinafter referred to as the Tribunal). The acquisition of the lands in dispute was made under the Calcutta Improvement Act, 1911 which incorporates some provisions of the Land Acquisition Act, 1894 including Section 23 (1) and (2) subject to modifications provided therein.
(2.) By Section 74 (c) of the Calcutta Improvement (Amendment) Act. 1955 (West Bengal Act XXXII of 1955) which came in force on October 20, 1955 before sub-paragraph (2) of paragraph 9 of the Schedule to the Act, the following sub-paragraph was inserted- "Paragraph 9. (1) Sub-section (2) of Section 23 shall be deemed to be omitted."
(3.) The Tribunal in the view that it was bound by the decision in Balammal v. State of Madras, held the above provision omitting Section 23 (2) from Clause 9 (1) of the Schedule to the Calcutta Improvement Act was unconstitutional and violative of Article 14 of the Constitution. The Tribunal accordingly awarded solatium of 15% as provided under Section 23 (2) of the Land Acquisition Act in the awards for acquisition under its consideration.;