JUDGMENT Sen, J. An award dated August 12, 1969, pissed by the Special Land Acquisition Judge, Alipore, in a reference under section 18 of the Land Acquisition Act being L.D.P Case No. 233 of 1967 (v) is the subject matter of challenge in the appeal preferred by the State of West Bengal as also in the cross objection filed by the claimants-respondents. In our view the impugned award has to be set aside and the reference must go back for reassessment since in view of the latest decision of this court assessment of compensation on the market value as prevailing in December 1946, as made by the learned Judge is not sustainable in law. 2. A vast track of land measuring about 161.6066 acres extending over 5 Mouzas, namely, Mouzas Belgharia and Basudevpur within Police Station Baranagore, Mouzas Patna and Uttar Nimta within Police Station Dum Dum and Mouza Osmanpur within Police Station Khardah was acquired by the appellant State of West Bengal under the provisions of West Bengal Land Development and Planning Act, 1948 (hereinafter referred to as the said Act) for settlement of immigrants who had migrated into the State on account of circumstances beyond their control. It is not in dispute that the relative notification under section 4 of the said Act was published on November 1, 1951, while the declaration under section 6 was published on November 15, 1951. The Collector published an award dated March 21, 1966, for compensation in favour of the respondents for a sum of Rs. 8,15,472.38 assessing the different categories of lands in different Mouzas at different rates. There is no dispute that the Collector in assessing the compensation assessed the same not on the market value as on the date of publication of the notification under section 4 but on the market value as prevailing on December 31, 1946, in view of the condition attached to proviso (b) to section 8(1) of the said Act. 3. The claimants felt aggrieved by the assessment so made and filed a petition dated July 22, 1966, claiming reference under section 18 of the Land Acquisition Act. 3. The claimants felt aggrieved by the assessment so made and filed a petition dated July 22, 1966, claiming reference under section 18 of the Land Acquisition Act. In this petition for reference one of the principal grievances made out was that the Collector went wrong in assessing the compensation on the basis of the market value as prevailing on December 31, 1946, and not on the market value as prevailing on November 1, 1951, the date of publication of the notification under section 4 of the said Act. The claimants further challenged the propriety and correctness of the assessment as made even on the basis of the market value as prevailing on December 31, 1946. 4. The learned Special Land Acquisition Judge in disposing of the reference made an award enhancing the valuation. But even then he made the assessment in the same manner as by the Collector, that is, on basis of the market value as prevailing on December 31, 1946, in view of the condition attached to proviso (b) to section 8(1) of the said Act referred to hereinbefore though upon his findings even on that basis the claimants are entitled to enhanced compensation as assessed by him. It is no doubt true that off the law as then prevailing both the parties proceeded at the trial on the basis that the assessment is to be made with reference to the market value prevailing on December 31 1946, in view of the said provision and they adduced evidence also on that basis. 5. Feeling aggrieved by the award as passed by the learned Special Land Acquisition Judge to the extent he had enhanced the compensation, the State of West Bengal has preferred the above appeal. The claimants, on the other hand, have preferred the above cross objection claiming further enhancement and at the time of hearing they have raised a specific objection that in view of the decision of this court in the case of (1) Ramendra Nath Nandi v. State of West Bengal, AIR 1975 Calcutta 325 they are entitled to compensation assessed on the market value prevailing on November 1, 1951, the date of publication of the notification under section 4 of the said Act. According to the claimants, the impugned award being based on the condition attached to proviso (b) to section 8 (1) of the said Act and the said proviso having been struck down by this court as unconstitutional there should be a fresh assessment on the basis of the market value as prevailing on November 1, 1951. In our view such a claim on the part of the claimants is irresistible in view of the above Bench decision of this court. 6. In the above case of (1) Ramendra Nath Nandi v. State of W.B. (Supra) this court was considering the constitutional validity of the second paragraph of clause (b) of the proviso to section 8(1) of the said Act incorporating the condition above referred to. This court for reasons given in the decision held that the said second paragraph having made a differential treatment to the owners of the land similarly situated without any rational relation to the object sought to be achieved, is ultra vires Article 14 of the Constitution and is void'. This court held that the owners of the land sought to be acquired for one of the public purposes specified in the Act, viz., settlement of immigrants are adversely discriminated in the matter of payment of compensation though there is no indication in the Act why it is being so done. The classification is made on the basis of public purpose but that cannot reasonably justify discrimination between owners similarly situated. There is no relation far less any rational relation between the classification made between owners of land regarding payment of compensation and the object of the Act or the object sought to be achieved by such classification. Reconsidering the legal position we find no reason to differ from the view expressed by this court in the above decision because the view so expressed is based on high authorities in the decisions of the Supreme Court referred to therein. 7. Mr. Das appearing on behalf of the appellant State has no doubt drawn our attention to on earlier decision of this court in the case of (2) Laxminarayan Dutta v. The State of West Bengal AIR 1975 Calcutta 103. There, the learned Judges no doubt overruled the appellant's contention that the proviso to section 8(1) was ultra vires the Constitution. Mr. Das appearing on behalf of the appellant State has no doubt drawn our attention to on earlier decision of this court in the case of (2) Laxminarayan Dutta v. The State of West Bengal AIR 1975 Calcutta 103. There, the learned Judges no doubt overruled the appellant's contention that the proviso to section 8(1) was ultra vires the Constitution. Their Lordships held as such in view of the retrospective incorporation of Article 31B in the Constitution and incorporation of the West Bengal land Development and Planning Act in the 9th Schedule. What was argued by the appellant before Their Lordships in that case was that the proviso providing for an artificial basis for assessment of the compensation does not provide for just compensation, and as such is unconstitutional. In other words, the constitutional validity of the provision was challenged on the limited grounds by invoking the principles laid down by this court in (3) Bela Banerji's case AIR 1951 Calcutta 111 affirmed by the Supreme Court in AIR 1954 SC 173 wherein it was held that Article 31(2) required a just amount to be given for any property acquired and if the amount which law gives be not just or reasonable then it cannot be regarded as compensation within that clause. Their Lordships, however, held that in view of the retrospective incorporation of Article 31B such principle can hardly be invoked any further for declaring the provision to be unconstitutional since the Act itself has been incorporated in the 9th Schedule. We shall consider hereinafter the effect of the incorporation in the 9th Schedule but we should point out here and now that in the case of (2) Laxminarayan Dutta (Supra) this court was not invited to consider the constitutional validity of the impugned provision on the ground of the same violating Article 14 of the Constitution. Nor was it brought to the attention of the learned Judges that the impugned provision having been incorporated in the statute by an amendment made long after the Act was brought into the 9th Schedule, is not entitled to the protection of Article 31B. This aspect was considered for the first time in the case of Ramendra Nath Nandi. Nor was it brought to the attention of the learned Judges that the impugned provision having been incorporated in the statute by an amendment made long after the Act was brought into the 9th Schedule, is not entitled to the protection of Article 31B. This aspect was considered for the first time in the case of Ramendra Nath Nandi. That aspect not having at all been raised before this court in the earlier decision of Laxminarayan Dutta and there being no decision on the point, we are not in a position to hold that there is in substance any conflict between the two decisions. 8. Now we would proceed to consider the effect of incorporation of the West Bengal Land Development and Planning Act, into the 9th Schedule. It was so incorporated in April 1955, find what was incorporated was "West Bengal Land Development and Planning Act 1948 (West Bengal Act XXI of 1948) as amended by West Bengal Act XXIX of 1951" West Bengal Act XXIX of 1951 made no material change so far as the provision for compensation in section 8 is concerned. It only added an explanation to section 1(2) of the Act. It only added an explanation to section 1(2) of the Act. The West Bengal Land Development and Planning Act, 1948, as originally enacted incorporated a provision in section 8, the material part whereof was as follows :- "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 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 far as may, 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 Section 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 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 the 31st day of December 1946, on the assumption that the land had been at that date in the State in which it is in fact was on the date of publication of the said notification, the amount of such excess shall not be taken into consideration." 9. It is clear, therefore, that on the provisions of the original Act, whatever the purpose of acquisition, the compensation was to be assessed not on the market value prevailing on the date of publication of the notification under section 4 but on the market value as prevailing on December 31, 1946. The provision making the declaration of the Government conclusive as the public nature of the purpose of acquisition and the limitation of the amount of compensation so as not to exceed the market value of the land as on December 31, 1946, were held to be unconstitutional, and as such, void by this court in (3) Bela Banerji’s case referred to hereinbefore and that decision was affirmed by the Supreme Court. 10. On April 8, 1955, the West Bengal Land Development and Planning Act, was amended by an Ordinance being West Bengal Ordinance IV of 1955. 10. On April 8, 1955, the West Bengal Land Development and Planning Act, was amended by an Ordinance being West Bengal Ordinance IV of 1955. Section 8 of the Act was restricted in its application when the Ordinance provided: "Notwithstanding anything contained in the West Bengal Land Development & Planning Act 1948 the condition mentioned at the end of clause (b) of the proviso to section 8 thereof shall not apply and shall be deemed never to have applied, in relation to land which is, or has been, acquired in pursuance of the said Act for any public purpose other than the purposes specified in sub-clause (1) of clause (d) of section 2 thereof." On 26/27th April 1955 the said Act as amended by the Amending Act XXIX of 1951 but without any reference to the above Ordinance was incorporated in the 9th Schedule. The Amending Act XXIII of 1955 incorporating the impugned condition was enacted on September 21, 1955, that is, long after the incorporation of the Parent Act in the 9th Schedule. This court in (1) Ramendra Nath Nandi's case had rightly pointed out that the Parent Act as amended by the Amending Act XXIX of 1951 having been incorporated in the 9th Schedule, it was not the intention of the legislature that the amendment brought about by the Ordinance, should as well go into the Schedule. This court further pointed out, and in our view rightly, that an Ordinance being a temporary provision no useful purpose would have been served by incorporating the amendment brought about by such an Ordinance into the 9th Schedule because such amendment would not have survived on the expiry of the Ordinance and as such in incorporating the Act into the 9th Schedule what was incorporated was the Parent Act as amended by Act XXIX of 1951 and not by the Ordinance. Therefore, this court had rightly held that the amendment incorporated by the West Bengal Act XXIII of 1955 is not entitled to the protection arising from the incorporation of the Parent Act in the 9th Schedule and the provision so introduced by the amendment was liable to be challenged as unconstitutional being violative of Article 14. 11. Before us Mr. Therefore, this court had rightly held that the amendment incorporated by the West Bengal Act XXIII of 1955 is not entitled to the protection arising from the incorporation of the Parent Act in the 9th Schedule and the provision so introduced by the amendment was liable to be challenged as unconstitutional being violative of Article 14. 11. Before us Mr. Das has put forward an ingenuous argument that the Amending Act XXIII of 1955 having been declared unconstitutional and void, the Parent Act as incorporated in the 9th Schedule must be held to be surviving so that in respect of every acquisition under the provision of the said Act, compensation payable must be assessed on the basis of the market value as prevailing on December 31, 1946, and not on the basis of the market value prevailing on the date of publication of the notification under section 4 of the said Act. In our view, however, this contention of Mr. Das is clearly unsustainable as it is based upon a misapprehension. No doubt on the original provisions in the Parent Act compensation was payable on the basis of the market value as prevailing on December 31, 1946, in case of acquisition for any of the public purposes set out in the Act and the Act with such a provision was incorporated in the 9th Schedule in April 1955. Once so incorporated, the statute acquired the protection under Article 31B, but as Article 31B itself specifies that the same would be subject "to the power of any competent legislature to repeal or amend it" so that once so amended or repealed; the original provision loses its effect to the extent of the amendment or the repeal. Now, in the present case after the decision in (3) Bela Banerji's case the State legislature being competent to amend the statute, amended the statute. The original section 8 on amendment was made section 8(1) and the offending part of it was deleted. Section 8(1) now provides: "After making a declaration under section 6 the State Government may acquire the land and thereupon the provision of the Land Acquisition Act 1894, (hereinafter in this section referred to as the said Act), shall, so far as may be apply. Section 8(1) now provides: "After making a declaration under section 6 the State Government may acquire the land and thereupon the provision of the Land Acquisition Act 1894, (hereinafter in this section referred to as the said Act), shall, so 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 section 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 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 in relation to the land acquired for the public purpose specified in sub clause (i) of clause (d) of section 2 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 is in fact was on the date of publication of the said notification, the amount of such excess shall not be taken into consideration." 12. The amendment which was brought into effect in the Parent Act on September 21, 1955, materially altered the provision in section 8 by deleting the provision whereby compensation in respect of all acquisitions was to be determined with reference to the market value prevailing on December 31, 1946, and in lieu thereof restricted the said limitation only in respect of acquisitions for a public purpose as specified in section 2(d)(i) that is settlement of immigrants. Mr. Das is proceeding upon a misapprehension that the entire Amending Act has been struck down by this court in (1) Ramendra Nath Nandi's case. That is, however, not the effect of that decision. That decision has only struck down the second sub-paragraph to proviso (b) to section 8(1). The old provision being replaced by the new one notwithstanding the fact that the old provision was incorporated in the 9th Schedule, the same cannot survive for the simple reason that the same has been replaced by an amendment by a competent legislature and Article 31B speaks of continuance of the Act subject to the amendment. The old provision being replaced by the new one notwithstanding the fact that the old provision was incorporated in the 9th Schedule, the same cannot survive for the simple reason that the same has been replaced by an amendment by a competent legislature and Article 31B speaks of continuance of the Act subject to the amendment. Though a part of the substituted provision has been struck down, the other material part still stands. In this view, we find no substance in the contention raised by Mr. Das that in view of the decision of this court in (1) Ramendra Nath Nandi's case, the assessment of the compensation must still be made on the basis of the original provision in section 8. 13. For foregoing reasons we overrule both the contentions raised by Mr. Das. We are unable to hold that there is any real conflict between the two decisions of this court in the cases of (2) Lakshmi Narayan Dutta (supra) and (1) Ramendra Nath Nandi, (supra). In any event if it is assumed that there is any such conflict then in that event the earlier decision must be held to be overruled by the decisions of the Supreme Court referred to in later decision. We therefore hold agreeing with the view expressed in (1) Ramendra Nath Nandi's case that the condition attached to the proviso to Section 8(1) of the Act being ultra vires and unconstitutional, the assessment made in terms thereof has got to be set aside. We are also unable to sustain the other contention of Mr. Das viz. even if the assessment as made cannot be sustained because of the unconstitutionality of the conditions as aforesaid still it should be sustained on the original provisions of the Parent Act. Those provisions can no longer be invoked after those were taken off the statute by the Legislature by a competent legislation. Hence the assessment has to be made in terms of the amended provision excluding the unconstitutional part thereof viz., the condition specified in the second paragraph to the proviso. 14. In the result, we allow the appeal as also the cross objection and set aside the award. We send back the reference for re-determination of the compensation on the basis of the market value as prevailing on the date of publication of the notification under section 4(1) of the said Act. 14. In the result, we allow the appeal as also the cross objection and set aside the award. We send back the reference for re-determination of the compensation on the basis of the market value as prevailing on the date of publication of the notification under section 4(1) of the said Act. The parties would bear their costs up to this date. Let the records be sent down forthwith. The learned Special Land Acquisition Judge is directed to dispose of the Reference at an early date. Chakrabarti, J. : I agree.