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1978 DIGILAW 161 (CAL)

Kanchan Lal Sarkar v. Calcutta Improvement Trust

1978-03-03

GANENDRA NARAYAN RAY

body1978
JUDGMENT Ganendra Narayan Ray, J. 1. The petitioner, Kanchan Lal Sarkar along with his co-sharers owned and possessed various premises in Rajendra Lal Mitra Road. Some of the said premises were in khas possession of the petitioner and his co-sharers and some were tenanted and were governed by the West Bengal Premises Tenancy Act, 1956 and the Calcutta Thika Tenancy Act, 1949. By partition amongst the co-sharers at two successive stages, premises No. 133/1 and 134 Raja Rajendra Lal Mitra Road since renumbered into several other premises appertaining to the said Rajendra Lal Mitra Road were allotted to the petitioner and the petitioner is now the exclusive owner of the premises in question. The respondent Nos. 7 to 37 are the thika tenants under the petitioner in respect of the holding in question. 2. The respondent No.1 viz. The Calcutta Improvement Trust framed a Scheme known as Street Scheme No. IV-M (Beliaghata Main Road to Narkeldanga Main Road) and the respondent No.2 viz. The Chairman, Calcutta Improvement Trust issued notice under section 78B (1) of the Calcutta Improvement Act, 1911 informing the then owners of the holding that the Board of Trustees for the Improvement of Calcutta proposed to assess the amount of betterment fee payable under section 78A of the Calcutta Improvement Act in connection with the aforesaid Street Scheme No. IV-M. It transpires that the petitioner participated in the said assessment proceeding and did not object to such assessment of betterment fee as admittedly the petitioner had expected that the benefit of the improvement would accrue to the petitioner himself. It also appears that the petitioner did not ask for any apportionment of the betterment fee between himself and his tenants in respect of the holdings in question. The petitioner's case is that the petitioner did not ask for such apportionment in view of the fact that the tenants particularly the thika tenants were then liable to be evicted for development purposes and that the Thika Tenancy Act was held not applicable to an area included in the Improvement Scheme. 3. By a notice dated 10.11.1966, the Chairman, Calcutta Improvement Trust, informed the petitioner that Rs. 38,000/- had been assessed as betterment fees under section 78B (2) of the said Act of 1911 and the petitioner by a letter dated 7.2.1967 agreed in writing his liability for the said betterment fee assessed. 3. By a notice dated 10.11.1966, the Chairman, Calcutta Improvement Trust, informed the petitioner that Rs. 38,000/- had been assessed as betterment fees under section 78B (2) of the said Act of 1911 and the petitioner by a letter dated 7.2.1967 agreed in writing his liability for the said betterment fee assessed. The petitioner's further case is that subsequently by amendment of the Calcutta Thika Tenancy Act, the rights of the thika tenants were amply protected and it is now practically impossible to evict a thika tenant and in all reality the petitioner has only the right to receive rent and the said rent also cannot be enhanced substantially because of provisions in the Thika Tenancy Act as amended. In September 1972 the petitioner received a demand from the Chairman, Calcutta Improvement Trust, for the payment of the said betterment fee of Rs. 38,000/- before 16.9.1972 and it was further stated in the said letter of demand that from 16.11.1972 the said sum would also carry an interest at the rate of 6% per annum. The petitioner thereafter by his letter dated 14.11.1972 informed the said Chairman that in view of the changed provisions of law the benefits of the Improvement Scheme would accrue principally to the tenants and the said tenants were also persons interested in the premises in question and that it is absolutely necessary that the amount of betterment fee assessed should be apportioned between the petitioner and the tenants. In the said letter the petitioner further contended that the provisions relating to the imposition of betterment fee in the said Calcutta Improvement Act of 1911 were ultra vires the Constitution. The Chief Valuer, Calcutta Improvement Trust, however informed the petitioner that in view of the provisions of section 78A of the said Act of 1911 the betterment fee could not be apportioned between the petitioner and his tenants. In the meantime in the judgment passed on 1.12.1972 in Civil Revision Case Nos. 4110-4111 of 1964, the Division Bench of this High Court held that Section 78A to Section 78G of the Calcutta Improvement Act, 1911 were ultra vires the Constitution. In the meantime in the judgment passed on 1.12.1972 in Civil Revision Case Nos. 4110-4111 of 1964, the Division Bench of this High Court held that Section 78A to Section 78G of the Calcutta Improvement Act, 1911 were ultra vires the Constitution. On 31.8.1973, the instant writ petition was moved before this Court inter alia challenging the vires of the provisions of sections 78A to 78G of the said Act and for canceling the levy and/or demand of betterment fee by the Trustees for the Improvement of Calcutta as contained in various annexure appended to the writ petition, being Annexure A, B, C, E and F. 4. It appears that during the pendency of the instant Rule, the Supreme Court delivered judgment in Civil Appeal Nos. 579-580 of 1976 arising out of the aforesaid Civil Revision Cases Nos. 4110-4111 of 1964. In the Said decision of the Supreme Court made in the case of the Trustees for the Improvement of Calcutta vs. Chandra Sekhor Mallick, AIR 1977 SC 2034 , the Supreme Court held that Section 78B to Section 78G of the Calcutta Improvement Act, 1911 did not suffer from the vice of excessive delegation or infraction of Article 14 of the Constitution. It was also held that the guidance has been given to the Act in selecting the lands to be included in the scheme and there are also safeguards provided with a view to ensuring that the lands are not arbitrarily or capriciously included in the Scheme. 5. Mr. B.C. Dutt, the learned Counsel appearing for the petitioner contended at the time of hearing of the Rule that the provisions of Section 78A including sub-sections (1) and (2) of the Calcutta Improvement Act are vague and it is not possible to evaluate the land in the manner proposed in sub-section (2) of Section 78A. Mr. Dutt contended that a land with structure cannot be valued notionally as a land without structure and such hypothetical valuation of the land only for a land with structure cannot but be arbitrary and improper. Mr. Dutt further contended that the expression or in between the expressions the owner of the land and any person having any interest therein must be read as and, otherwise no intelligible meaning can be given to the said section. For proper understanding of the said contention of Mr. Mr. Dutt further contended that the expression or in between the expressions the owner of the land and any person having any interest therein must be read as and, otherwise no intelligible meaning can be given to the said section. For proper understanding of the said contention of Mr. Dutt reference may be made to Section 78A of the Act which is set out hereunder:- "78A (1) – When by the making of any improvement scheme, any land in the area comprised in the scheme required for the execution thereof will, in the opinion of the Board, be increased in value the Board, in framing the scheme, may in lieu of providing for the acquisition of such land declare that a betterment fee shall be payable by the owner of the land or any person having an interest therein in respect of the increase in value of the land resulting from the execution of the scheme. (2) Such betterment fee shall be an amount equal to one-half of the increase in value of the land resulting from the execution of the scheme and shall be calculated upon the amount by which the value of the land on the completion of the execution of the scheme estimated as if the land were clear of buildings exceeds the value of the land prior to the execution of the scheme estimated in the like manner." Mr. Dutt contended that Section 78A (1) postulates that there should be actual increase in the valuation of the land because of implementation of the scheme of the Calcutta Improvement Trust. Mr. Dutt in this context referred to Section 2(1)(a) of the said Act. Betterment fee has been defined in the said section as the fee prescribed by Section 78A (1) in respect of an increasing value of land resulting from the execution of an Improvement Scheme. 6. Mr. Dutt contended that the expression or in between the expression owner of the land and any person having any interest therein in Section 78A (1) cannot be read as disjunctive and the principle of ejusdem generis also is not applicable because of the use of expression any after the word or in Section 78A (1). Mr. 6. Mr. Dutt contended that the expression or in between the expression owner of the land and any person having any interest therein in Section 78A (1) cannot be read as disjunctive and the principle of ejusdem generis also is not applicable because of the use of expression any after the word or in Section 78A (1). Mr. Dutt contended that if the said expression or is read as and, there will be no difficulty in computing the betterment fee and apportioning the same because there are accepted principles for determining the respective liability between owner and other persons having interest in the land. Mr. Dutt also contended that it was not the intention of the Legislature to impose betterment fee only on the owner but the Legislature really intended that the persons other than owners having any interest in the land in question should also be liable for betterment fee because they will also derive some benefit on account of betterment. Mr. Dutt submitted that admittedly the Board of Trustees failed to consider the case of apportionment of betterment fee between the owner and the persons having interest in the land in question and as such the imposition of betterment fee on the petitioner only as owner is illegal and void. Mr. Dutt also contended that there could not be any question of estoppel against the statute and simply because the petitioner due to ignorance of correct legal position and also due to incorrect legal advice accepted the liability to pay the betterment fee at one point of time, he should not be debarred from challenging the propriety and correctness of the imposition of betterment fee on the petitioner only as owner of the holding in question. Mr. Dutt contended that the Supreme Court in the said case of the Trustees for the Improvement of Calcutta vs. Chandra Sekhar Mallick, AIR 1977 SC 2034 , although held that Sections 78B to 78G were intra vires the Constitution and did not suffer from the vice of excessive delegation and/or infraction of Article 14 of the Constitution, it had no occasion to decide the contentions now being raised by the petitioner in the instant Rule. Mr. Dutt also referred to a Bench decision of this Court made in the case of Nanda Kumar Banerjee vs. Board of Trustees for the Improvement of Calcutta, AIR 1957 Cal. 578 . Mr. Dutt also referred to a Bench decision of this Court made in the case of Nanda Kumar Banerjee vs. Board of Trustees for the Improvement of Calcutta, AIR 1957 Cal. 578 . It was held in said case that sub-section (1) of Section 78A of the Calcutta Improvement Act goes no further than to provide for charging of betterment fee in respect of a land which, in the opinion of the Board, will increase in Value as a result of the execution of the Scheme. No question of computing the fee under sub-section (2) or levying the fee can, however, arise till the stage indicated by Section 78B (1) has been reached. Further sub-section (1) is also severable from sub-section (2) and therefore where the real grievance of the parties is against sub-section (2), they should and will be entitled to raise their objection when the proceedings for the assessment of betterment fee are actually initiated. It was also held that if the method prescribed in sub-section (2) for determining the increasing value and assigning the fee is invalid, on the ground that it imposes unreasonable restriction on his rights to enjoy profits of his property, there is no reason why the party should not be able to take his objection at the subsequent stage when a levy is actually sought to be assessed and imposed. Relying on the aforesaid decision Mr. Dutt contended that the petitioner may not contend that there has not been any betterment of the holding in question because of the implementation of the said scheme but the petitioner will be justified and will be within his rights to challenge the propriety and correctness of the imposition of the betterment fee on the petitioner alone and also to challenge the constitutionality of Section 78A (2) if the authority proceeds on the footing that the betterment fee is to be levied only on the owner and not on other persons having interest in the land. Mr. Dutt also contended that the authorities under the Calcutta Improvement Trust failed to take note of the incidence of the Calcutta Thika Tenancy Act as amended in the matter of imposing the betterment fee. In view of the amendment of the Thika Tenancy Act, excepting for a very limited purpose, a thika tenant cannot be evicted and there is also immense restriction in increasing the rent of a thika tenant. In view of the amendment of the Thika Tenancy Act, excepting for a very limited purpose, a thika tenant cannot be evicted and there is also immense restriction in increasing the rent of a thika tenant. Mr. Dutt also referred to the decision made in the case of Coffee Board Bangalore vs. Joint Commercial Tax Officer, Madras AIR 1971 SC 870 . It was held in the said case that errors of law or fact committed in the exercise of jurisdiction founded on a valid law did not entitle a person to have them corrected by way of petitions under Article 32 of the Constitution but the proper way to correct them was to proceed under the provisions of appeal etc., or by way of proceedings under Article 226 before the High Court. Mr. Dutt contended on the strength of this decision that as errors of law or fact had been committed, regarding the petitioner's liability to pay betterment fee, the said fact of acceptance of betterment fee at one stage cannot preclude the petitioner from challenging the legality and correctness of such imposition on the petitioner alone in the instant writ proceeding Mr. Dutt also referred to the provisions of imposition and adjudication of betterment fee under the Madras Town Planning Act and submitted that in the said Act, on the increase in the value of the property, betterment fee is levied and there ii provision for the estimation of the market value of such property on the first day of April of each of the financial year and if the estimated market value of the levied in any such financial year exceeds the market value of the land as on the date of publication of the notification under section 10 or section 12 of the said Act then the betterment contribution shall be levied on that excess. Accordingly there is scope in taking into account whether due to change in circumstances in the succeeding year there has been any increase in valuation of the property. In this connection Mr. Dutt referred to a decision of the Madras High Court in the case of Suseela Ammal vs. Corporation of Madras, 1973 (2) Madras Law Journal 509. This decision however does not touch any of the questions raised in the Rule. 7. Mr. In this connection Mr. Dutt referred to a decision of the Madras High Court in the case of Suseela Ammal vs. Corporation of Madras, 1973 (2) Madras Law Journal 509. This decision however does not touch any of the questions raised in the Rule. 7. Mr. Kanan Kumar Ghose, the learned advocate appearing for the Board of Trustees for tile Improvement of Calcutta and other authorities under the Calcutta Improvement Trust contended that there was no ambiguity or uncertainty or excessive delegation of powers in Section 78A or in the scheme relating to imposition of assessment and payment of betterment fee as contained in Sections 78A to 78G of the Improvement Act. Mr. Ghose also contended that the word land in both sub-section (1) and sub-section (2) of Section 78A has the same meaning and land in both the sub-sections means land clear of building. So it cannot be contended that the provisions of Section 78A (1) and Section 78A (2) of the Calcutta Improvement Act are vague and unworkable and that it is not open to value a land with structure as a land without structure. In this context Mr. Ghose also relied on the said Bench decision of this Court made in the case of Nanda Kumar Banerjee vs. Board of Trustees for the Improvement of Calcutta, AIR 1957 Cal. 578 , since referred to by Mr. Dutt. It was held in the said decision that like all definition clauses, Section 2 of the Calcutta Improvement Act begins with the words unless there is anything repugnant in the subject or context and there was no doubt whatsoever that the land in the contemplation of Section 78A (1) is the same land as in the contemplation of Section 78A (2). The land contemplated by the latter Section is, under the express term of it, the bare land without structure and the inter-relation between the two sub-sections of Section 78A cannot be possibly disregarded and if it cannot be, it must be held that context in which the word land is used in Section 78A (1) makes it impossible to take it in the sense of land including structures. Mr. Mr. Ghose next contended that the expression owner of the land or any person having an interest therein in sub-section 78A (1) means owner or any person having an interest akin or analogous to the owner, but it without mean tenants or other persons having come kind of interest in the lands. Mr. Ghose submitted that the interpretation sought to be put forth by Mr. Dutt will lead to absurd and unworkable propositions. For example, a mortgagee, in respect of a land out of possession in a simple or equitable mortgage, will have to pay betterment fee if Mr. Dutt's interpretation is accepted. Similarly a monthly tenant or a thika tenant will have to pay betterment fee although they have no permanent right in the land in question and although such tenants are liable to be evicted under the appropriate Acts governing their tenancies. According to Mr. Ghose the expression or must be read in the disjunctive sense, and the Legislature never intended to apportion betterment fee between the owner and any person having any kind of interest in the land. Mr. Ghose in this connection referred to a passage of Maxwell's Interpretation of Statute, 11th Edition, page 221. It has been noted in the said treatise that where the language of a Statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment as to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. Mr. Ghose also referred to a decision of the Supreme Court made in the case of Tirath Singh vs. Bachittar Singh, AIR 1955 SC 830 , wherein the above observation in Maxwell's Interpretation of Statute was relied upon. Mr. Ghose contended that the real intent and purpose of Section 78A (1) must be derived from the context of the Statute, intention of the Legislature and scheme of the sections 78A to 78G and their purposes. In this connection Mr. Ghose also referred to an observation of Lord Denning, J. in the case of Sea Fort Court Estates Ltd. vs. Asher, 1949 (2) All E.R. 155, which was also quoted in approval by the Punjab High Court in the case of Herdwari Lal vs. Moti Ram, AIR 1952 Punjab 416. In this connection Mr. Ghose also referred to an observation of Lord Denning, J. in the case of Sea Fort Court Estates Ltd. vs. Asher, 1949 (2) All E.R. 155, which was also quoted in approval by the Punjab High Court in the case of Herdwari Lal vs. Moti Ram, AIR 1952 Punjab 416. Lord Denning J. observed in the aforesaid decision that in the absence of it (clarity), when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy and then must supplement the written word so as to give force and life to intention of the legislature. Mr. Ghose submitted that the restrictions imposed by the amendment of the Thika Tenancy Act against eviction of a tenant are of no consequence so far as the liability of an owner of the land to pay betterment fee is concerned and such amendment was also made long after the liability to pay betterment fee accrued. Mr. Ghose next submitted that vires of Sections 78A to 78G had been decided by the Supreme Court in the aforesaid decision made in the case of the Trustees for the Improvement of Calcutta vs. Chandra Sekhar Mallick, AIR 1977 SC 2034 , and as such it cannot be contended that section 78A is ultra vires or that betterment fee is also to be leived proportionately on the tenants and other persons having any kind of interest on the land or that it is not possible to make assessment of betterment fee in respect of a land where there is structure on the land Mr. Chose submitted that the petitioner accepted the imposition of betterment fee imposed on him on 7.2.1967 and it was only on 14.11.1972, the petitioner questioned the legality for such betterment fee. According to Mr. Ghose, the grievance of the petitioner is imaginary, after-thought and belated one and the petitioner is not entitled to any relief in the Constitutional Writ Jurisdiction of this Court. According to Mr. Ghose, the grievance of the petitioner is imaginary, after-thought and belated one and the petitioner is not entitled to any relief in the Constitutional Writ Jurisdiction of this Court. After giving anxious consideration to the respective submissions of the parties, I am of the view that the expression or in Section 78A (1) of the Act has been used in the disjunctive sense and any person having an interest therein does not refer to any person having any kind of interest in the land in question but it means such person who has an interest in the land akin to the interest of an owner. Betterment fee under the Act is levied only once and it does not run with the land year to year like Municipal rates and taxes. It will be unjust to saddle a mere licensee for a short period, a monthly tenant or a person having some interest in the land temporarily, with the liability of payment of betterment fee like an owner. Such person not having any permanent right in the land cannot enjoy the effect of betterment permanently and in my view the ordinary meaning and grammatical construction to the expression any person having an interest therein should not be accepted because such meaning will lead to hardship, inconvenience, injustice and absurdity not intended by the Legislature in the context of the relevant sections. It may be noted in this connection that while examining the validity of the sections 78A to 78G of the Act, the Supreme Court in the aforesaid case of Trustees for the Improvement of Calcutta vs. Chandra Sekhar Mallick, AIR 1977 SC 2034 , also proceeded on the footing that the betterment fee is imposed on the owner of the land. In my view, the contentions of Mr. Ghose are of substance and I am inclined to accept the same. In the result, the Rule is discharged but in the facts of the case, there will be no order as to costs.