Salil Kumar Datta, J.@mdashThis is an appeal against the judgment and order of Chittatosh Mukherjee, J. dated March 12, 1973 whereby the
connected Rule was discharged. The relevant facts are as follows: On or about March 30, 1963 the Board of Trustees for the Improvement of
Calcutta, in pursuance of an earlier proposal, and, after considering the Inspection Report of its Alignment Committee, at their meeting on March
30, 1963 resolved that a street scheme for widening of Prince Anwar Shah Road from its junction with Russa Road to its junction with Raja
Subodh Mullick Road (Gariahat Road) be prepared as recommended by the Committee. It was further resolved that survey be made for framing a
General Improvement Scheme for the areas situated on either sides of Prince Anwar Shah Road for purpose of improvement. Thereafter on
December 14, 1963 the Board after considering the joint report of the Chief Valuer and the Chief Engineer decided that General Improvement
Scheme be framed for (i) the improvement of communications by widening Prince Anwar Shah Road to a width of 100 ft. except near junction of
Subodh Mukherjee Road where the width was to vary from 84 ft. to 90 ft. on account of substantial pucca-built houses; (ii) the improvement of
the areas situated on either side of Prince Anwar Shah Road by widening of the existing roads and provision of new roads for improving access
and communications to such localities, provision for parks and open spaces; and the development of vacant and lowlying lands. Under this scheme
known as Scheme No. 114B (Prince Anwar Shah Road), the entire premises No. 357, Prince Anwar Shah Road was notified for acquisition.
2. Notice u/s 43 of the Act was published in the Calcutta Gazette, and local newspapers in March 1967 in respect of the said scheme No. 114B
(Prince Anwar Shah Road). Thereafter in or about March 16, 1971 notices u/s 45 of the Act were issued to the respective owners and occupiers
of the concerned premises inviting objections to the proposed acquisition of lands, including land of premises No. 357, Prince Anwar Shah Road.
No objection was received from the petitioner but objections filed by others were considered by the Objection Committee appointed for the
purpose. The recommendation of the Committee was considered by the Board which adopted the scheme with modifications suggested by the
Committee and the particulars and estimate prepared by their Chief Valuer and Chief Engineer were approved by the Board and Government
thereafter was moved for sanction of the Scheme. The Government of West Bengal u/s 49(1) of the Act sanctioned the said Scheme known as the
General Improvement Scheme No. 114B Prince Anwar Shah Road as submitted by the Board as aforesaid subject to the modification that width
of the road was not to be reduced below 60 feet at any point. The sanction of Government dated March 12, 1970 was published in the Calcutta
Gazette extra-ordinary on March 13, 1970.
3. The petitioner company, the appellant before us, had its registered office at 357, Prince Anwar Shah Road Calcutta where it has been carrying
on business as a lessee under its landlords at a monthly rent of Rs. 225/- only. According to its case, the Company has constructed new structures
thereon and it is said that its business had grown to a considerable extent, the area being about 31/2 bighas- encircled by a boundary wall
constructed by it. It is also stated that in the said premises covered under the said General Improvement Scheme there about 17 companies
carrying on their business by installation of costly machinery and providing employment to a considerable number of persons.
4. According to the petitioner company, it never had any knowledge of the scheme and the acquisition of the premises therefor as per notification
mentioned earlier. It came to know of the acquisition the aforesaid premises from a notice served on it u/s 9 of the Land Acquisition Act dated
October 25, 1971 inviting'' it to submit its claim for the said acquisition of its premises aforesaid comprised within the scheme for the General
Improvement of Calcutta under CMDA Scheme No. 114B. The petitioner submitted its claim under protest and challenged the validity and legality
of the scheme by an application under Article 226(1) of the Constitution moved on August 18, 1972.
5. The petitioner company contended in its application that no notice as required u/s 45 of the Calcutta Improvement Act, 1911 was never served
on it even though it was the recorded occupier of the premises. Thereby the petitioner was deprived of its statutory right to object to the proposed
scheme as also the right confer-red u/s 78 of the Act. Further the scheme of the Board was not prepared in accordance with law said the sanction
of the State Government was obtained on the basis that a substantial portion of the costs and expenses of the scheme would be re-coverable from
inter alia betterment fee in respect of land comprised in the scheme but not required for the execution thereof. In a recent Bench decision of this
Court, imposition of betterment fee had been held to be illegal. Accordingly the scheme in absence of further sanction of the State Government was
no longer a scheme valid in Jaw and no further sanction was obtained. The petitioner further submitted that proposed acquisition was
discriminatory and unreasonable as adjacent lands abutting on the road belonging to others were left out of acquisition offending a rights guaranteed
under -Articles 14 and 19 of the Constitution. It was lastly contended that the proposed acquisition of the entire premises 357, Prince Awar Shah
Road was without any purpose connected with the scheme excepting in respect of a strip of land on the north required for widening the said street
as indicated in published plan of the Board which indicated non-application of mind and thus a malafide and colourable exercise of power by the
Board. The back portion thereof constituting the major area of the premises was not required for any of the avowed purposes of the acquisition.
The petitioner had always been ready and willing to surrender the rectangular front portion of the said premises required for widening the road. The
petitioner accordingly prayed for issuance of appropriate writ restraing the respondents from proceeding further with the scheme and quashing the
scheme and proceedings in connection therewith in so far as it relates to the aforesaid premises.
6. The Board as also the State of West Bengal opposed the Civil Order arising from the said application under Article 226(1) and in the affidavit-
in-opposition filed on behalf of the Board by Arun Kumar Ghosh affirmed on September 18, 1972 it was stated that the notices u/s 43 in respect
of the Scheme No. 114B Prince Anwar Shah Road was duly published in the local newspapers, while notices u/s 45 was duly served on the
owners and also on occupiers of the premises concerned and notice on the occupier of the said premises was served on one K.P. Ghosh on April
27, 1967. It was stated that while owners submitted objections to the acquisition the occupiers did not file any objection to the scheme or
acquisition. The Committee appointed to hear the objection heard the objection of the owners on February 2, 1968 and referred back its
recommendations to the Board over ruling the objection and suggesting modifications. The revised particulars and estimates were made thereon by
the Chief Valuer and the Chief Engineer which was accepted by the Board by resolution dated July 6, 1968. The total costs of the Scheme as
approved was Rs. 5.17 crores, out of which recovery from sale of old materials, sale of land, betterment levy would be Rs. 2.91 crores leaving
Rs. 2.26 crores as net costs of the scheme. This scheme was forwarded to the State Government for sanction. The State Government sanctioned
the scheme which was published in the Calcutta Gazette on March 13, 1970 with some modifications about the width of the road and thereafter
land acquisition proceedings commenced.
7. It was denied that the scheme suffered from any infirmity-legal or otherwise or that the petitioner''s rights under Article 14, 19 or 31 were
violated and the petitioner not having availed of the opportunity as provided in law was not entitled to any further opportunity against the acquisition
after the stipulated period prescribed by law. An affidavit-in-opposition affirmed by the Second Land Acquisition Collector was also filed
supporting of the position taken by the Board. The petitioner filed his affidavit-in-reply thereto denying that K.P. Ghosh was ever its employee, and
reiterating that no notice u/s 45 was served on the petitioner debarring it from filing objection u/s 45(2) or claim u/s 78. The petitioner also
reiterated that it had no objection to an acquisition of the land required for widening the road while the acquisition of the entire premises would
destroy a number of industries situate therein throwing a large number of people out of employment, apart from the huge loss of investments made
therein.
8. Thereafter it appears a Civil Rule was issued on the above application calling upon the respondents to show cause why the writs as prayed for
should not be issued. The Board thereafter filed another affidavit-in-opposition to the Rule verified by Arun Kumar Ghosh its Deputy Chief Valuer
affirmed on November 22, 1972 containing similar averments as in the earlier affidavit-in-opposition, taking a further plea that there was inordinate
delay in moving the application in August 1972 when the scheme was published on March 16, 1967 and there was no explanation for the delay. It
was further, reiterated that notice u/s 45(1) was served on the petitioner and one K.P. Ghosh received the notice on behalf of the occupiers, copy
of which was annexed. It was stated that no application u/s 78 within the stipulated time was filed by the owners so that the premises could not be
abandoned from acquisition.
9. An affidavit-in-opposition to the said Rule was also filed on behalf of the owners of the premises No. 357, Prince Anwar Shah Road, affirmed
by S.N. Ray Chowdhury on December 11, 1972 stating that said premises originally numbered as premises No. 108, Prince Anwar Shah Road,
was leased to one Mandaram Agarwalla who assigned the lease in favour of the petitioner. The petitioner thereafter took a lease of the premises
from April 1, 1956 for ten years and had been continuing in possession of the premises after the expiry of the lease. It was said that if there were
industries in the said premises, they were there without lawful authority or right, title or interest in the premises as sub-letting was expressly
prohibited under the lease. The allegations about construction of structures or investment of considerable amounts therein were denied and
disputed. It was also stated that under the terms of the lease the owners were entitled to compensation for land and structures while the lessee was
entitled to compensation for loss of business. It was further stated that on their objection to acquisition they were duly given a personal hearing.
10. Affidavits were also filed on behalf of Arun Iron Works, an industry, carrying on business at the said premises who supported the case of the
petitioners.
11. In its affidavit-in-reply affirmed on behalf of the petitioner by its director Ramprit Singh it was stated that the premises were not vacant nor
undeveloped low lying lands but was already a developed land and no consideration was given as to whether the land would be necessary for the
scheme or not. It was reiterated that K.P. Ghosh was never an employee of the petitioner and no notice u/s 45 was ever served on the petitioner.
For the widening of the road only 20 feet wide strip on the land of the disputed premises abutting on the proposed road as per road widening
scheme would only be necessary so that acquisition of entire premises was unnecessary and beyond any reasonable requirement. There was
another affidavit-in-reply by the petitioner to the affidavit-in-opposition filed by the State containing similar averments. The petitioner also filed an
affidavit-in-reply to the owners'' affidavit-in opposition stating that the petitioner was given permission to construct structures in the said premises
and considerable amount was invested accordingly. The lands were developed by the petitioner and other industries had been carrying on business
with full knowledge of the owners.
12. The petitioner, it appears gave notice, with leave of Court of an additional ground contending that sections 78A to 78G were ultra vires
Articles 14 and 19 of the Constitute.
13. It appears that a supplementary affidavit was affirmed on behalf of the Board and its Chairman by Arun Kumar Ghosh dated February 7, 1973
stating that notice u/s 45 was duly served on the petitioner as would appear from its letter dated April 20, 1967, which as follows:--
PADMA LTD.
108, Prince Anwar Shah Road,
Tollygunj.
Ref: PL/CIT/67/967
Calcutta-1. 20th April, 1967.
To
The Chairman,
Office of the Board of Trustees for the Improvement of Calcutta,
10, Netaji Subhas Road,
Calcutta-1.
Dear Sir,
Re: Premises No. 367
(now known as 108)
Prince Anwar Shah Road, Calcutta.
We as occupier of the above premises have received your notice served on us u/s. 45 of Bengal Act V of 1911 as amended by Bengal Act VIII of
1931 and West Bengal Act XXXII of 1955 about the acquisition of the said premises for General Improvement Scheme No. 114B, (Prince
Anwar Shah Road).
As our industry is running, we will be the greatest sufferer and labour will be idle if at all the said premises is acquired and we strongly object to it.
We will furnish you the full particulars of the losses at the time of hearing.
Yours faithfully,
for PADMA LIMITED,
Sd/- Illegible
Director.
14. It was also said that the petitioner appeared before the objection Committee at the hearing of the objection in respect of premises No. 367 as
mentioned in the letter through D.P. Chatterjee Administrative Officer as appearing from the minutes of the Objection Committee also produced
before us.
15. To this affidavit there was an affidavit-in-reply by the petitioner affirmed through its director Ramprit Singh denying that the signatory to the
said letter was ever a director of the petitioner at the material time. It was stated that D.P. Chatterjee was not an administrative officer of the
petitioner at any point of time. It was reiterated that no notice u/s 45 was ever served on the petitioner company.
16. The rule came up for hearing before the learned Judge who held that in the instant case, a street scheme was originally proposed to be framed
but subsequently a general improvement scheme was framed in accordance with provisions of section 36. It was further held that an improvement
Scheme framed by the Board is not dependent upon imposition of betterment fee, so that even if section 78A is held ultra vires a scheme will be
capable of being executed in absence of betterment fee which are severable from other parts of the scheme. It was also held that notice u/s 45 was
served on the recorded occupier of premises No. 857, Prince Anwar Shah Road, and the letter of April 20, 1967 the original whereof was
produced before and seen by the learned Judge, was in fact written by the petitioner which indicated service of the notice u/s 45. On the
unrebutted presumption that official acts are duly performed, the learned Judge found that notice of hearing of objections was duly served by
certificate of posting, and in view of the error of the petitioner in its letter mentioning the premises as bearing No. 367, the objection was docketed
and heard in respect of that premises. Even so there was the old number and the petitioner''s case of hardship was considered and disposed of so
that the merits of the decision was also not affected by alleged irregularity in the matter of serving the notice. It was also held that there was delay in
moving the application and for all the aforesaid reasons the Rule along with two are similar rules were discharged. The appeal is against this
decision.
17. u/s 45 service of -notice on the owners and the recorded occupiers in respect of land which the Board proposes to acquire in executing the
scheme is required to be made within thirty days of the publication of the notice u/s 43. Such notice is necessary to enable such person if he
dissents from such acquisition or recovery of betterment fee, to state his reasons in writing within sixty days. After the expiry of the period, u/s 47,
the Board shall consider the objection, representation or statement of dissent received in connection therewith and after hearing all persons who
may be desired to be heard, the Board may abandon the scheme or may refuse to sanction the scheme. Under sub-section 49 when the State
Government sanctions an improvement scheme it shall announce the fact by notification and the Boards shall proceed to execute the scheme; sub-
section (2) of section 49 provides that publication of a notification under subsection (1) shall be conclusive evidence that the scheme has been duly
framed and sanctioned.
18. The petitioner''s case is that no such notice was served on the petitioner even though it was the recorded occupier in the municipal records. u/s
49(2) as we have seen, the publication of a notice under subsection (1) shall be conclusive evidence that tile scheme has been duly framed and
sanctioned. There is no dispute that the notice of the sanction of the Scheme u/s 49(1) was duly published in the Calcutta Gazette Extraordinary on
March 13, 1970 (annexure ''A'' to the petition). In view of the publication of the notification as aforesaid it is conclusive evidence of the scheme
being duly framed and sanctioned. It could be contended, relying on Smt. Somavanti and Others Vs. The State of Punjab and Others, that no
other evidence is permissible to dispute the conclusiveness about the framing and sanctioning of the scheme. In view however, of the evidence
adduced by both parties in this respect we proceed to consider the same.
19. There can be little doubt that failure to serve notice on the recorded occupier as required u/s 45 (i) could be a fatal irregularity as such lapse
may completely disable the interested party to file his dissent against acquisition of land or recovery of better fee and also disentitle him to a hearing
of his objection to which he is otherwise entitled in law. According to the petitioner, as we have seen, no notice u/s 45(1) was at all served while
according- to the Board notice was served on the petitioner as unnamed occupier, there being'' no requirement in law to name the occupier (vide
section 45 (i) (ii) in the notice and such notice was received by one K.P. Ghosh on its behalf. According to the earlier affidavits on behalf of the
Board, no objection to the acquisition was filed by the petitioner. In a subsequent affidavit the Board produced a letter written by the petitioner
signed by one of its director which is dated April 20, 1967 which we have quoted earlier. The Board has given sufficient explanation for its late
production, as it was- docketed wife the records of the Objection Committee in respect of premises No. 367 mentioned in the letter. The letter
was mislaid because of the error on the part of the petitioner and no contradictory position in the circumstances was taken by the Board. This letter
however could not be produced before us but the learned trial Judge has himself seen the letter and has expressly mentioned so.
20. This letter clearly indicated that notice under 45 was served on the-petitioner, but he lodged his objection in respect of premises No. 367
instead of 357, though the premises No. 108 as the new premises was also mentioned therein while the premises are recorded in all
correspondence and records as 357. The petitioner stated in its affidavit that the person signing the letter was not its director at the material time. In
view of the'' conclusiveness attached to notification u/s 49(2), a heavy onus lay on the petitioner to establish that the letter was not issued by it nor
signed by its director. Except mere denial as being true to information from record no papers or documents were produced to establish that such
person was not the director of the petitioner or the letter was not of the petitioner though such letter was in its letter head even bearing a reference
number. The petitioner should have produced its balance sheets or certified copies thereof or letter issue register and other relevant papers to
establish its case that the person signing the letter was not its director nor was the letter issued from its office. For all these reasons it is not
necessary for us to prove the matter further as to whether the notice was served as provided in section 166 of the Act as contended by Mr. Dutt
or in Section 51 of the Companies Act, 1956 as contended by Mr. Ginwalla, learned Advocate appearing for the Board. On the materials on
record we are satisfied, in agreement with the learned Judge, that notice u/s 45(1) was duly served on the petitioner.:
21. As to the hearing of the objection, it appears that the Objection Committee gave hearing to the petitioner in respect of premises No. 367 as
prayed for and one D.P. Chatterjee Administrative Officer appeared on its behalf. The petitioner except bare denial did not produce any
documents, salary register or other papers to establish that the said person was not in its employee at the material time. We have; seen the minutes
of the Objection Committee which, in respect of premises No, 357 records the presence of the owners'' representative and for premises No. 367
mentions the name of D.P. Chatterjee as appearing in support of the objection which was recorded ""on ground of hardship"". These records are
kept and maintained in usual course of business, and, if no hearing was given to the petitioner for premises No. 357, it was due to its own error.
Further section 160 (i) provides that no act done or proceeding taken under this Act shall be questioned on ground merely of, amongst others,
failure to serve notice u/s 45 on any person when no substantial injustice has resulted from such failure or any omission defect or irregularity not
affecting the merits of the case. We are also of opinion that no injustice has resulted in the circumstances or any act or irregularity has taken place
which has affected the merits of the cases, as we shall presently see.
22. Mr. Dutt next contended that the notice under sub-section (1) or section 45 shall under sub-section (3) be signed by or by the order of the
Chairman. The notice in the instant case was signed in the following manner.
By order
Sd/- B.C. Mukherjee for Chairman"".
The endorsement in our view clearly indicates that the signatory signed the letter for Chairman under his order. Such order need not be a written
order and may be a verbal order as well, and as we ''have seen from the minutes of the Objection Committee, such notices extends to hundreds.
There is really no question of any delegation or authority by the Chairman in this instance. It is true that no evidence has been adduced to establish
that there was in fact any order of the Chairman calling upon the signatory to sign the order on behalf of the Chairman. It is however to be noted
that there was no challenge in the petition or in affidavits on behalf of the petitioners to the said order not being signed by or by the order of the
Chairman. In absence of such challenge in the petition or affidavits which it appears was made only in course of argument, there was no occasion
for the Board to adduce evidence in support of the impugned order. As the words stand, we feel that they are in compliance with provisions of
sub-section (3) of section 45 and there is no infirmity on that account.
23. It was next submitted that the scheme started as a street scheme but after some progress was made in respect thereof, the Board switched off
to general improvement without authority of law. It is correct to say that originally in 1961 the Calcutta Improvement Trust Alignment Committee
decided that the scheme for the widening of Prince Anwar Shah Road should be taken on a priority basis. The Board thereafter decided to appoint
a Committee to examine the proposals for widening of Prince Anwar Shah Road and development of adjacent area. The Committee submitted its
report and the Board by its resolution dated March 30, 1963 decided that a scheme for widening Prince Anwar Shah Road be prepared and the
Scheme be also prepared for areas situated on either side of the said street for purpose of improvement. Finally after considering the joint report of
the Chief Valuer and the Chief Engineer, the Board by its resolution of December 14, 1963 decided that a General Improvement Scheme to be
known as 114B (Prince Anwar Shah Road) be framed for (i) improvement of communications by widening the Prince Anwar Shah Road between
Deshpran Sasmal Road and Raja Subodh Mullick Road to a width of 100 ft. except in the section near its junction with Raja Subodh Mullick
Read, the width is to vary because of existence of substantial pucca houses on both sides and, (ii) the improvement of the areas- situated on either
side of Prince Anwar Shah Road by widening of the existing roads and provisions for new road for improving access and communications to such
localities, provision of parks and open spaces and the development of vacant and low-lying lands. Notices accordingly were published in Calcutta
Gazette u/s 43 of the Act in respect of the said Scheme 114B Prince Anwar Shah Road and the State Government by its order dated March 12,
1970 sanctioned the General Improvement Scheme 114B, Prince Anwar Shah Road with the modification that the total width of the road should
never be less than sixty feet in any section.
24. It will thus be seen that the General Improvement Scheme launched by the Board consisted of two parts, street widening scheme and
improvement of the area along both sides of the road. It was thus a composite scheme combining a street scheme with a general improvement
scheme. Section 35 D provides: --
35D. An improvement scheme may be one of the following types or a combination of any two or more of such types, or of any special features
thereof, that is to say--
(a) a general improvement scheme,
(b) a street scheme,
(c) a housing accommodation scheme,
(d) a re-housing scheme.
The contention of the petitioner that a street scheme was switched over to a general improvement scheme is not based on fact as the impugned
scheme was always a combination of a street scheme and a general improvement scheme which is warranted in law.
25. It was next contended that in view of the Bench decision in C.R. Nos. 4110-11 of 1964 Chandra Sekhar Mullick Vs. Trustees for the
Improvement of Calcutta, decided on December 1, 1972 wherein it was held that imposition of betterment fee was unconstitutional, the present
scheme was unworkable. Further, sanction of the State Government was obtained on the basis of recovery of costs of acquisition out of
betterment fee to the extent about Rs. 2.91 crores which was no longer available to the Board for implementing the scheme and in the context of
the changed circumstances further sanction from Government was necessary. We are informed that an appeal to the Supreme Court is pending
against the aforesaid decision. Be that as it may, in agreement with the trial court, we are of opinion that the possibility of the recovery of the
amount of betterment fee did not form an integral part of the scheme. The Board''s estimate of recovery of costs for the total sum of Rs. 2.91
crores was from sale of old materials, sale of land and betterment levy, and betterment levy was not shown separately. Assuming that no
betterment levy was available it will for the Board, to find out the necessary finance from its own resources for execution of the scheme or to
abandon the scheme and the legal validity of the scheme is not in any way affected thereby. It will also be seen that there being no alteration of the
scheme after Government sanction, no further sanction of Government is required u/s 50.
26. Mr. Dutt lastly contended that the scheme was a glaring instance of colourable exercise of power by the authorities without any application of
mind, as the acquisition of the entirety of the premises No. 357 was not necessary for the purpose of the scheme. The scheme was as we have
seen, apart from street widening, for widening of existing roads, provision of new roads for improving access and communication to such localities,
provision for parks and open spaces and development of vacant and low lying lands, A perusal of the published plan, of the Board it is said
indicates that for widening the street, a strip of land of about 20 feet wide on the northern part of the premises along the road would be required,
for which acquisition proceeding was necessary. The petitioner never objected to such acquisition and the Court''s injunction did not extend to that
strip of land in respect whereof the Board was at liberty to proceed with the scheme in accordance with law. But the balance area of the said
premises, consisting of its major portion, was in no way required for the scheme, as the map indicates, either for road alignments for new roads, or
provisions for parks or open space though any portion of the said land. There is also no dispute that the land of the premises was neither vacant
nor low lying. So that it is obvious that no portion of the land thereof, except the portion required in the proposed extension of the road, was ever
required for the general improvement scheme. The acquisition of this land was thus a colourable exercise of power without due application of mind
by the authorities. The proposed acquisition of the rear portion of the premises should accordingly be quashed.
27. Mr. Dutt referred to several decisions in support of his proposition that even though a notification by the State Government u/s 49(2) is
conclusive evidence that the scheme has been duly framed and sanctioned, such conclusiveness is subject to exceptions. In case of colourable
exercise of power the sanction of the Government is open to challenge at the instance of the aggrieved party. In AIR 1937 265 (Privy Council) the
Judicial Committee set aside the declaration of the Trust on the ground that the appellant''s property was badly lighted and ventilated while the
relevant law provided for demolisation only if the dwelling place was of such construction or in such a condition as to be unfit for human habitation.
In Smt. Somavanti and Others Vs. The State of Punjab and Others, it was held that the declaration u/s 6 of the Land Acquisition Act, 1894 made
by the Government, that a particular land is needed for public purpose is conclusive but if it appears that what the Government is satisfied about is
not a public purpose but a private purpose or no purpose at all, the action of the Government would be colourable as not being relatable to the
power conferred upon it by the Act and its declaration would be a nullity. Similar view was taken in Raja Anand Brahma Shah Vs. State of Uttar
Pradesh and Others, . In The Amritsar Improvement Trust Vs. Baldeva Inder Singh and Others, , the Court observed that the power conferred on
the Improvement Trust was not a plenary power. It is a power to be exercised in accordance with the conditions laid down in the Act. By
resolving to frame a development-cum-housing accommodation scheme, the Trust could not provide for an expansion scheme of a municipality in a
locality adjacent thereto without forming an opinion in respect thereof in accordance with the provisions laid down in the Act.
28. The Calcutta Improvement Act 1911 (Bengal Act V of 1911) is an Act to provide for the improvement and expansion of Calcutta. It is stated
in its preamble:--
Whereas it is expedient to make provision for the improvement and expansion of Calcutta by opening up congested areas, laying out or altering
streets, providing open spaces for purposes of ventilation or recreation, demolishing or constructing buildings, clearing bustees, executing housing
schemes and schemes for the rehousing of persons displaced by the execution of improvement schemes, acquiring land for the said purposes and
all works relating thereto, and otherwise, as hereinafter appearing;
And whereas it is expedient that a Board of Trustees should be constituted and invested with special powers for carrying out the objects of this
Act;
Chapter III provides for improvement schemes, Section 35A provides for undertaking of works by the Board and incurring of expenditure for
development of areas. Relevant Sections are as follows:--
35A. The Board may, subject to the provisions of this Act, undertake any works and incur any expenditure for the improvement and development
of any area to which this Act applies and for the framing and execution of such improvement schemes as may be necessary from time to time.
* * * *
35C. (1) An improvement scheme may provide for all or any of the following matters, namely:--
(a) the acquisition by the Board of any land in the area comprised in the scheme, which will in their opinion be required for or affected by the
execution of the scheme.
(b) the laying out or re-laying out of the land comprised in the scheme;
(c) the demolition, alteration or reconstruction of buildings or portions of buildings situated on the land which it is proposed to acquire in the said
area;
35D. An improvement scheme may be of one of the following types or a combination of any two or more of types or of any special features
thereof, that is to say--
(a) a general improvement scheme,
(b) a street scheme,
(c) a housing accommodation scheme,
(d) a re-housing scheme.
36. Whenever it appears to the Board, whether upon official representation made u/s 37 or without such representation--
(a) that any buildings in any area which are used as dewelling places are unfit for human habitation, or,
(b) that danger to the health of the inhabitants of any area or of a neighbouring area is caused by--
(i) the narrowness, closeness and bad arrangement and condition of streets or buildings or groups of buildings in such area, or
(ii) the want of light, air, ventilation or proper conveniences in such area, or
(iii) any other sanitary defects in such area, or
(c) that any area is undeveloped or has been developed without a satisfactory plan or design and that it is necessary to develop or re-develop It on
a better plan after incorporating all or some of the improvements mentioned in section 35C.
The Board may pass a resolution to the effect that a general improvement scheme ought to be framed in respect of such area and may then
proceed to frame such a scheme.
29. The Calcutta Improvement Act is a Statute which is concerned with the improvement of Calcutta through execution of various types of
improvement schemes or a combination of different types of scheme as may be considered fit and necessary by the Board. The Board consists of
eleven Trustees as provided in section 4 and may appoint Committees u/s 20. Under chapter IV which provides for acquisition and disposal of
land, the Board is empowered to acquire lands for the purpose of the Act by agreement (section 68) or tinder the Land Acquisition Act, 1894; the
section 69 which is as follows :--
69. The Board may, with the previous sanction of the State Government, acquire land under the provisions of the Land Acquisition Act, 1894, for
carrying out any of the purposes of this Act.
Under section 70 a Tribunal has also been constituted for performing the functions of the court in reference to the acquisition of land for the Board
under the Land Acquisition Act. Section 78 provides for abandonment of acquisition of land not required for the execution of the scheme on
application by the owner of land or any person having interest therein greater than a lease for years having seven years to run in consideration of a
sum as may be determined by the Board.
30. Section 78A to 79A are concerned with betterment fees and those sections 78B to 78G have been declared ultra vires Article 14 and
conferring arbitrary and uncanalised powers on Trust employees by the judgment referred to earlier and we are not concern with betterment fee in
this appeal. Section 81 empowers the Board to retain or lease or sell any land vested in or acquired by them under this Act.
31. Section 35C (1) (a) provides inter alia for acquisition of land which may be affected by the scheme. There is no doubt and it has nowhere been
disputed that the lands of premises No. 357 Prince Anwar Shah Road are affected by the scheme, and accordingly are liable to acquisition under
the Act, even though such land may not be necessary for execution of the scheme. There is accordingly no illegality in the acquisition of the land of
the said premises though it does not appear that the land comprised in disputed premises was required for any of the purposes of execution of the
general improvement scheme except in respect of the front portion thereof which admittedly would be required for widening the street.
32. The Calcutta Improvement Act provides, as we have seen, acquisition by the Board of land which may also be affected by the execution of the
scheme and for sale of land vested in them obviously if not required for execution of the scheme. The Act in section 78 also provides for
abandonment from acquisition of land, in any area comprised in any improvement scheme, which is not required for execution of the scheme. Such
abandonment from acquisition of land can be made in consideration of the payment by the owner or any person interested of a sum as may be
fixed by the Board in that behalf. It appears that such sales or consideration for abandonment from acquisition are also source of income to the
Board which has to expend huge amounts for the purpose of the Act namely for the expansion and improvement of Calcutta and there is no reason
why an owner of the land or person interested therein affected by the execution of any scheme of the Board should be blessed with the benefits
arising out of the scheme without consideration. When the legislature has conferred powers on the Board for acquisition of land as may be affected
by execution of any of its schemes, and the Board takes steps for acquisition of land in pursuance thereof, such acquisition can not be said to be
without legal authority or without any purpose by colourable exercise of power as happened in the cases in the decisions cited above. Accordingly
we are unable to hold that the acquisition of the disputed premises is a colourable exercise of power and without legal authority. On the contrary
such acquisition is within the competence of the Board duly sanctioned by the State Government. Further, the petitioner, not having any interest in
the land greater than a lease for years having seven years to run, was not competent in law to apply for abandonment from the acquisition of the
disputed premises for consideration as provided in section 78(2) (b) of the Calcutta Improvement Act, 1911.
33. The petitioner company alleged in its grounds that lands belonging to others in the locality were left out of acquisition leading to discriminatory
treatment on it. No particulars were furnished and the Act does not confer on the petitioner any right to plead for release from acquisition. Further
in view of the emergency, the petitioner company gave up its challenge on ground of infringement of rights guaranteed by Article 14 and 19 of the
Constitution. As all contentions raised by the appellant fail, this appeal is dismissed, without however any order as to costs. All interim orders are
vacated.
Sankar Prasad Mitra, C.J.
I agree