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HIGH COURT OF CALCUTTA
CHAKRABARTI, DAS GUPTA
NANDA KUMAR BANERJEE - Appellant
Versus
BOARD OF TRUSTEES FOR THE IMPROVEMENT OF CALCUTTA - Respondent
A. F. O. O. 77-A Of 1955
Decided On : APRIL 18, 1957
CALCUTTA IMPROVEMENT ACT - SCHEME FOR EXTENSION OF THOROUGHFARE - INCLUSION OF LAND IN BETTERMENT FEE AREA - OBJECTION TO INCLUSION - DELAY IN FILING APPLICATION - APPLICABILITY OF ARTICLE 226 OF THE CONSTITUTION - SEVERABILITY OF SUB-SECTIONS (1) AND (2) OF SECTION 78-A - VALIDITY OF SECTION 78-A (2) - COMPUTATION OF BETTERMENT FEE - TAKING INTO ACCOUNT OF STRUCTURES STANDING ON LAND - REASONABLENESS OF RESTRICTION ON ENJOYMENT OF PROFITS OF PROPERTY.
Fact of the Case:
The appellants, owners of premises No. 55-A, Raja Raj Ballav Street, Calcutta, challenged the inclusion of their land in the betterment fee area under Scheme No. LVIII of the Calcutta Improvement Trust. They contended that the inclusion was improper as the land had not increased in value due to the execution of the scheme and that Section 78-A (2) of the Calcutta Improvement Act, which provided for the computation of betterment fee without taking into account structures standing on the land, was unreasonable and violated their fundamental right to hold property under Article 19 (3) (f) of the Constitution.
Finding of the Court:
1. The appellants' application was time-barred and should have been dismissed on that ground. However, the court proceeded to consider the merits of the case in the absence of any objection from the respondents. 2. The inclusion of the appellants' property in the betterment fee area took place in 1949, before the commencement of the Constitution, and therefore, the appellants could not challenge the inclusion on the ground of violation of their fundamental rights. 3. Section 78-A (1) of the Calcutta Improvement Act, which provides for the inclusion of land in the betterment fee area, is severable from Section 78-A (2), which provides for the computation of betterment fee. The appellants could challenge the validity of Section 78-A (2) at the stage of assessment and levy of the fee, when their fundamental right to enjoy the profits of their property would be affected. 4. The method of computation of betterment fee prescribed in Section 78-A (2), which directed the computation to be made without taking into account structures standing on the land, was not unreasonable and did not violate the appellants' fundamental right to hold property. The appellants could challenge the validity of Section 78-A (2) at the appropriate time, when the assessment and levy of the fee was initiated.
Issues: 1. Whether the appellants' application was time-barred and should have been dismissed on that ground. 2. Whether the inclusion of the appellants' property in the betterment fee area violated their fundamental right to hold property under Article 19 (3) (f) of the Constitution. 3. Whether Section 78-A (1) and Section 78-A (2) of the Calcutta Improvement Act were severable and whether the appellants could challenge the validity of Section 78-A (2) at the stage of assessment and levy of the fee. 4. Whether the method of computation of betterment fee prescribed in Section 78-A (2) was unreasonable and violated the appellants' fundamental right to hold property.
Ratio Decidendi: 1. The court held that the appellants' application was time-barred and should have been dismissed on that ground. However, the court proceeded to consider the merits of the case in the absence of any objection from the respondents. 2. The court held that the inclusion of the appellants' property in the betterment fee area took place in 1949, before the commencement of the Constitution, and therefore, the appellants could not challenge the inclusion on the ground of violation of their fundamental rights. 3. The court held that Section 78-A (1) of the Calcutta Improvement Act, which provides for the inclusion of land in the betterment fee area, is severable from Section 78-A (2), which provides for the computation of betterment fee. The appellants could challenge the validity of Section 78-A (2) at the stage of assessment and levy of the fee, when their fundamental right to enjoy the profits of their property would be affected. 4. The court held that the method of computation of betterment fee prescribed in Section 78-A (2), which directed the computation to be made without taking into account structures standing on the land, was not unreasonable and did not violate the appellants' fundamental right to hold property. The appellants could challenge the validity of Section 78-A (2) at the appropriate time, when the assessment and levy of the fee was initiated.
Final Decision: The appeal was dismissed with no order for costs.
( 1 ) THE appellants arc the owners of premises No. 55-A, Raja Raj Ballav Street, situated in the northern part of Calcutta. It is a fairly commodious house, built on 8 kottas of land and standing on its own grounds 01 12 more kottas. The house is a three-storeyed one and there is a foundation only for three storeys.
( 2 ) BY a scheme finalised in 1949, the land on which the house stands was included in the area which, under that scheme, is liable to be charged with a betterment fee. The application out of which the present appeal arises was directed against such incluision of the land in the scheme.
( 3 ) THE material facts are as follows:-- It appears that the Calcutta Improvement Trust has long had among its plans a project for extending the thoroughfare formerly known as the Central but, now known as Chittaranjan Avenue, upto the Chitpore Bridge. In connection with that project, an alignment, called Alignment No. IX, has teen in existence since 1917. On the llth'may 1932. a scheme, called Scheme No. XXXVII, was sanctioned by Government and that scheme carried Central Avenue upto Raja Raj Ballav Street. The stretch between Raja Raj Ballav Street and the Chitpore Bridge remained to be dealt with and nothing appears to have been done till 1947,
( 4 ) ON the 3rd May 1947, the then Chief Valuer and the then Chief Engineer of the Improvement Trust submitted a joint Proposal for the conversion of the alignment from Raja Raj Ballav Street to Chitpore Bridge into an improvement scheme. In view of certain difficulties, they proposed that the scheme might be divided into two sections and executed separately. The portion which they thought could be taken immediately in hand was the portion from Raja Raj Ballav Street to Baghbazar.
( 5 ) ON the 10th May 1947, the Trustees of the Calcutta Improvement Trust considered the proposal at a meeting and decided that before proceeding further. they should inspect the site. The 13th of Mdv 1047. war, fixed as the date for inspection and the site was duly inspected on that date. The next meeting of the Board was held on the 17th May 1947. at which a resolution was adopted to the effect that, a street scheme relating to the area be framed under Section 39 of the Calcutta Improvement Act. The Board gave certain directions as to the framing of the scheme, such as some provision to be made for the re-housing of people of comparatively slender means who might be de-housed and directed aft estimate to be prepared. A plan had already been submitted by the Chief Valuer and the Chief Engineer and the Board directed an estimate to be prepared for a scheme which would cover the area shown in the red verge on the plan. On the 25th November 1947, an estimate was submitted and it contained all the particulars of the scheme. The estimate came to be considered by the Board at their next meeting, held on the 1st December 1947, when the report made" by the Chief Valuer and the Chief Engineer as also the estimate prepared by them were approved. The Board directed that the scheme, to be known as Scheme No. LVIII, should be published in the Calcutta Gazette as required by Section 43 of the Act. It might be stated here that the plan showed an area of 199 kottas or 3. 29 acres as intended to be charged with a betterment fee and the estimate showed that an amount of Rs. 67. 200 was expected to be recovered. Premises No. 55-A. Raja Raj Ballav Street; was included within the 199 kottas marked out for the charging of a betterment fee.
( 6 ) IN accordance with the directions given by the Trustees a notice of the scheme was published in three consecutive issues of the Calcutta Gazette on the 18th and the 25th March and the 1st April 1948. Section 45 of the Act required that persons whose lands were proposed to be charged to a betterment fee should be served with a notice of the proposal and given an opportunity to state their objections in writing, if they dissented from the proposal to recover a bet
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