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Sheikh Gulfan and ors. Vs. Sanat Kumar Ganguli - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1965SC1839; [1965]3SCR364
ActsCalcutta Thika Tenancy Act, 1949 - Sections 2(5), 3, 4, 5, 5(1), 27(1), 27(6), 30 and 36; Calcutta Improvement Act, 1911 - Sections 42, 43, 44, 45, 47, 47(2), 78A, 79, 81, 120, 122, 123 and 126; Calcutta Improvement Act, 1931; Code of Civil Procedure (CPC) - Sections 30 and 31
AppellantSheikh Gulfan and ors.
RespondentSanat Kumar Ganguli
Cases ReferredImprovement of Calcutta v. Chandra Kanta Ghosh
Excerpt:
(i) property - tenancy - sections 2 (5), 3, 4, 5, 5 (1), 27 (1), 27 (6), 30 and 36 of calcutta thika tenancy act, 1949, sections 42, 43, 44, 45, 47, 47 (2), 78a, 79, 81, 120, 122, 123 and 126 of calcutta improvement act, 1911, calcutta improvement act, 1931and sections 30 and 31 of code of civil procedure, 1908 - leased property of respondent comes within scheme under calcutta improvement act - respondent settled betterment fee with board in 1952 - respondent filed suit for ejectment of appellants before high court - high court's jurisdiction disputed by appellants - single judge was of opinion that exception under section 30 (c) of tenancy act not available to respondent - on appeal division bench held exception available to respondent and ordered ejectment - appellant under certificate.....gajendragadkar, c.j.1. the short question which these six appeals raise relates to theconstruction of section 30(c) of the calcutta thika tenancy act, 1949 (w.b. actno. ii of 1949) (hereinafter called 'the act'). this question arises in thisway. the respondent sanat kumar ganguli is the owner of a plot of land beingpremises no. 12, haldar lane, in central calcutta. this plot had been let outin several lots to the predecessors-in-title of the six appellants. on july 24,1954, the respondent filed six suits nos. 2240 to 2245 of 1954 against the sixappellants respectively on the original side of the calcutta high court,claiming decrees for ejectment against them and asking for arrears of groundrent and municipal taxes. 2. the appellants contested the respondent's claim on the ground that.....
Judgment:

Gajendragadkar, C.J.

1. The short question which these six appeals raise relates to theconstruction of section 30(c) of the Calcutta Thika Tenancy Act, 1949 (W.B. ActNo. II of 1949) (hereinafter called 'the Act'). This question arises in thisway. The respondent Sanat Kumar Ganguli is the owner of a plot of land beingpremises No. 12, Haldar Lane, in Central Calcutta. This plot had been let outin several lots to the predecessors-in-title of the six appellants. On July 24,1954, the respondent filed six suits Nos. 2240 to 2245 of 1954 against the sixappellants respectively on the original side of the Calcutta High Court,claiming decrees for ejectment against them and asking for arrears of groundrent and Municipal taxes.

2. The appellants contested the respondent's claim on the ground that thelands in suits had been taken by their predecessors-in-title from the owner asThika tenants in or about the year 1900, and they alleged that they were inoccupation of the said plots after having built substantial structures on them.The appellants further claimed that they had themselves let out portions ofsuch structures to their own tenants. On these allegations, a preliminaryobjection to the competence of the suits was raised by the appellants on theground that under s. 5 of the Act, claim for ejectment of Thika tenants can beentertained only by the Controller, and so, the learned Judge on the originalside of the Calcutta High Court had no jurisdiction to entertain it.

3. The respondent admitted that the appellants were Thika tenants and didnot dispute that normally, a claim for ejecting such Thika tenants could betried only by the Controller; but he urged that the present suits fell withinthe scope of s. 30(c) of the Act and in consequence, the provisions of s. 5 andindeed, all other relevant provisions of the Act did not apply to them. That ishow the respondent sought to meet the preliminary objection raised by theappellants.

4. In appreciating the nature of the controversy thus raised by thepleadings, it is necessary to mention some more facts. On February 9, 1940 anotice was issued by the Chairman of the Calcutta Improvement Trust under s. 43of the Calcutta Improvement Act, 1911 (Bengal Act V of 1911) as amended up to1931. This Act will hereafter be called 'the Improvement Act'. This noticeshows that a scheme bearing No. 53 had been framed for the purpose ofimprovement of Calcutta by a street scheme in Ward No. 10 of the CalcuttaMunicipality for an area the boundaries whereof were described in the saidnotice. This notice gave the particulars of the scheme and was accompanied by amap of the area comprised in the scheme. It also contained the statement of theland which it was proposed to acquire as well as land on which betterment feewas proposed to be levied. These plans were open for inspection at the officeof the Trust at No. 5, Clive Street, Calcutta. Along with this notice, anothernotice was published which gave a list of properties proposed to be acquiredunder the scheme and contained a statement of the land in regard to whichbetterment fees were proposed to be levied. Premises No. 12, Haldar Lane, wereincluded in the latter category of lands.

5. In July 1952, proceedings were started for settling the betterment fee tobe levied in respect of premises No. 12, Haldar Lane, and a letter wasaddressed by the Chief Valuer of the Calcutta Improvement Trust to the respondenton November 19, 1952. This letter shows that the Chief Valuer had not receiveda reply from the respondent, though his advocate had accepted the assessment ofbetterment fee of Rs. 15,000 in the Land Committee meeting which had been heldon August 7, 1952 and confirmed by the Board on August 30, 1952. On November19, 1952, however, the respondent recorded in writing that he accepted the saidassessment.

6. The respondent's case before the learned trial Judge was that sincebetterment fee had been levied by the Board in respect of the suit premises andhad been accepted by him, s. 30(c) of the Act applied to the present suits.Section 30(c) provides that 'nothing in the Act shall apply to any landwhich is required for carrying out any of the provisions of the CalcuttaImprovement Act, 1911.' That is how the respondent sought to repel theapplication of s. 5 of the Act and the exclusive jurisdiction of the Controllerto deal with ejectment proceedings in respect of thika tenants' holdings. Thelearned trial Judge held that the plots constituting the land in the sixrespective suits did not attract the provisions of s. 30(c) of the Act, and so,he upheld the preliminary objection raised by the appellants and came to theconclusion that the suits filed by the respondent on the original side of theCalcutta High Court were incompetent and could not be entertained. In theresult, the said suits were ordered to be dismissed with costs.

7. The respondent challenged these decrees by preferring six appeals beforea Division Bench of the High Court. The learned Judges who heard these appealshave delivered separate, but concurring, judgments and have upheld therespondent's argument that the land in suits attracted the provisions of s.30(c) of the Act, with the result that the preliminary objection raised by theappellants has been rejected. Once the preliminary objection was rejected, itwas plain that no other point survived, because the appellants had no defenceto make on the merits of the respondent's claim. That is why the appeals wereallowed and decrees, for possession were passed in favour of the respondent.The claim made by the respondent in respect of arrears of ground rent andmunicipal taxes was also allowed. It is against these decrees that the appellantshave come to this Court with certificates granted by the High Court; and so,the only question which arises for our decision is whether the Division Benchwas right in holding that s. 30(c) of the Act applied to the present suits. Theanswer to this question depends on a fair construction of the provisionprescribed by s. 30(c).

8. Before dealing with this question, it is necessary to refer to thematerial provisions of the Act. The Act was passed in 1949 with the object ofmaking better provision relating to the law of landlord and tenant in respectof thika tenancies in Calcutta. Section 2(5) in Chapter I defines a 'thikatenant' as meaning any person who holds, whether under a written lease orotherwise, land under another person, and is or but for a special contractwould be liable to pay rent, at a monthly or at any other periodical rate, forthat land to that another person and has rejected or acquired by purchase orgift any structure on such land for a residential, manufacturing or businesspurpose and includes the successors in interest of such person. Sub-cl. (a),(b) and (c) of this definition exclude from its purview certain othercategories of persons, but we are not concerned with these categories ofpersons in the present appeals. It is common ground that the appellants arethika tenants in respect of the plots in their possession.

9. Chapter II of the Act deals with incidents of thika tenancies. Broadlystated, the object of the Act is to afford special protection to the thikatenants and several provisions have been enacted by the Act to carry out thisobject. Section 3 specifies the grounds on which alone a thika tenant may beevicted. Section 4 prescribes a notice before ejectment proceedings can betaken against a thika tenant; and s. 5 provides for proceedings for ejectment.The important feature of the provisions contained in s. 5(1) is that theapplication for ejectment of a thika tenant has to be made to the Controller inthe prescribed manner. The 'controller' is defined by s. 2(2) asmeaning an officer appointed as such by the State Government for an area towhich the Act extends and includes officers of another category thereindescribed. The remaining provisions of Ch. II deal with the procedure which hasto be followed by the Controller in dealing with applications for ejectment ofthika tenants and make other incidental provisions in that behalf. The policyof the Act to afford protection to the thika tenants is writ large in all theseprovisions.

10. Chapter III contains provisions as to rent of thika tenancies. ChapterIV deals with appeals and certain special procedures. Section 27(1), forinstance, provides for appeals to the Chief Judge of the Court of Small Causesof Calcutta and District Judge respectively under Clause (a) and (b). Section27(6) provides that an order made under sub-s. (4) by the Chief Judge or theDistrict Judge or a person appointed under sub-s. (2), as the case may be, or,subject to such order, if any, an order made by the Controller under this Actshall, subject to the provisions of sub-s. (5) be final and may be executed bythe Controller in the manner provided in the Code of Civil Procedure for theexecution of decrees. It is thus clear that the Act has made special provisionsfor the enforcement of the rights and liabilities of the thika tenants, hasconstituted hierarchy of special authorities to deal with claims made bylandlords against their thika tenants, either in the first instance or at theappellate stage. The decisions of these special authorities which become finalare assimilated to decrees passed under the Code of Civil Procedure and can beexecuted in the manner prescribed by 0.21 of the Code. Section 31 provides thatrestriction or exclusion of the Act by agreement between a landlord and a thikatenant will be invalid, and will not affect the rights conferred on the thikatenants by the provisions of the Act. It is in the light of these provisionsthat we have to construe s. 30 of the Act.

11. Section 30 reads thus :-

'Nothing in this Act shallapply to -

(a) Government lands,

(b) any land vested in or inthe possession of -

(i) the State Government,

(ii) a port authority of amajor port, or

(iii) a railway administration,or

(iv) a local authority, or

(c) any land which is requiredfor carrying out any of the provisions of the Calcutta Improvement Act,1911.'

12. The perusal of s. 30 clearly shows that the provisions of the Act areexcluded in regard to lands specified in Clause (a), (b) and (c), so that claimsmade for ejectment of thika tenants from these lands will not be governed bythe provisions of the Act and can be made and entertained in ordinary civilcourts of competent jurisdiction. The question which we have to consider in thepresent appeals is whether the land which is the subject-matter of the sixsuits is land which is required for carrying out any of the provisions of theImprovement Act.

13. That takes us to the relevant provisions of the Improvement Act itself.The Improvement Act was passed in 1911 and has been amended from time to time.Let us consider broadly the material provisions of this Act, as they stoodprior to the amendment of 1955, which would assist us in construing s. 30(c) ofthe Act. This Act was passed, because it was thought expedient to makeprovision for the improvement and expansion of Calcutta by opening up congestedareas, laying out or altering streets, providing open spaces for purposes ofventilation or recreation, demolishing or constructing buildings, acquiringland for the said purposes and for the re-housing of persons of the poorer andworking classes displaced by the execution of improvement schemes, andotherwise as hereinafter appearing. It was further thought expedient toconstitute a Board of Trustees and invest it with special powers for carryingout the objects of this Act. Section 2(1a) of this Act defines a'betterment fee' as the fee prescribed by s. 78A in respect of anincrease in value of land resulting from the execution of an improvementscheme. Chapter III of this Act deals with improvement schemes and re-housingschemes. Section 36 provides when general improvement schemes may be framed. Itis only where the conditions specified by Clause (a) & (b) of s. 36 aresatisfied that general schemes can be framed. Under this section, the Board hasto pass a resolution to the effect that the general improvement scheme shouldbe framed on the ground that the area comprised in the scheme is an unhealthyarea and that it was necessary to frame a general improvement scheme in respectof such area. Section 40 deals with matters which have to be considered whileframing improvement schemes. It provides that when framing an improvementscheme in respect of any area, regard shall be had to -

(a) the nature and the conditionsof neighbouring areas and of Calcutta as a whole;

(b) the several directions inwhich the expansion of Calcutta appears likely to take place; and

(c) the likelihood of improvementschemes being required for other parts of Calcutta.

14. Section 41 deals with matters which must be provided for in improvementschemes; it reads thus :-

'Every improvement schemeshall provide for -

(a) the acquisition by theBoard of any land, in the area comprised in the scheme, which will, in theiropinion be required for the execution of the scheme;

(b) the laying out or re-layingout of the land in the said area;

(c) such demolition, alterationor reconstruction of buildings, situated on land which it is proposed toacquire in the said area, as the Board may think necessary;

(d) the construction of anybuildings which the Board may consider it necessary to erect for any purposeother than sale or hire;

(e) the laying out oralteration of streets (including bridges, causeways and culverts), if required;and

(f) the levelling, paving,metalling, flagging, channelling, sewering and draining of the said streets,and the provision therein of water, lighting and other sanitary conveniencesordinarily provided in a Municipality.'

15. Section 42 deals with matters which may be provided for in dealing withimprovement schemes. It is necessary to read this section as well :-

'Any improvement scheme mayprovide for -

(a) the acquisition by theBoard of any land, in the area comprised in the scheme, which will, in theiropinion, be affected by the execution of the scheme;

(b) raising, lowering orlevelling any land in the area comprised in the scheme;

(c) the formation or retentionof open spaces; and

(d) any other matters,consistent with this Act, which the Board may think fit.'

16. Under s. 47, the Board is required to consider objections,representations and statements of dissent received under the relevantprovisions of sections 43, 44 and 45; and it provides that as a consequence ofconsidering the said objections, representations and statements of dissent, theBoard may either abandon the scheme or apply to the State Government forsanction to the scheme, with such modifications, if any, as the Board mayconsider necessary. Section 47(2)(e) lays down that every application submittedunder sub-s. (1) shall be accompanied by a list of the names of all persons, ifany, who have dissented, under s. 45, Clause (b), from the proposed acquisition oftheir land or from the proposed recovery of a betterment fee, and a statementof the reasons given for such dissent. The rest of the Chapter deals with thesubsequent stages of the framing of the improvement schemes to which it isunnecessary to refer.

17. Chapter IV deals with acquisition and disposal of land. Three sectionsout of this Chapter are relevant for our purpose. Section 78 deals with theabandonment of acquisition in consideration of special payment. Section 78(1)is relevant; it reads thus :-

'In any case in which the State Government hassanctioned the acquisition of land, in any area comprised in an improvementscheme, which is not required for the execution of the scheme, the owner of theland, or any person having an interest therein, may make an application to theBoard, requesting that the acquisition of the land should be abandoned inconsideration of the payment by him of a sum to be fixed by the Board in thatbehalf.'

18. The other sub-sections of s. 78 lay down a procedure for dealing withapplications made under sub-s. (1). With the details of these provisions we arenot concerned. The only point which is relevant for our purpose is that anapplication for abandonment can be made in respect of land which is notrequired for the execution of the scheme. In other words, if it appears thatthe piece of land which is comprised in the scheme already sanctioned by theGovernment is in fact not required for the execution of the scheme, andapplication may be made for abandonment of acquisition in respect of such aland. The basis for making such an application is that though the land wascomprised in the scheme, it is found that it is not required for the executionof the scheme.

19. That takes us to s. 78A which has a bearing on the construction of s.30(c) of the Act. Section 78A(1) is material for our purpose; it reads thus :-

'When by the making of any improvement scheme, anyland in the area comprised in the scheme which is not required for theexecution thereof will, in the opinion of the Board, be increased in value, theBoard, in framing the scheme, may in lieu of providing for the acquisition ofsuch land, declare that a betterment fee shall be payable by the owner of theland or any person having an interest therein in respect of the increase invalue of the land resulting from the execution of the scheme.'

20. Section 78A(2) provides for the determination and calculation of thebetterment fee.

21. The last section in this Chapter is s. 81. It confers power on the Boardto dispose of land vested in or acquired by them under this Act. Section 81(1)lays down that the Board may retain, or may let on hire, lease, sell, exchangeor otherwise dispose of any land vested in or acquired by them under this Act.How this power can be exercised is specified by sub-sections (2) and (3) of s.81.

22. Before we part with the Improvement Act, it would be useful to mentionthat sections 120 to 126 which occur in Ch. VI of this Act deal with theaccounts of the Board. Section 122 provides for credits to capital account andlays down, inter alia, that all sums, except interest, received by way ofspecial payments for betterment fees in pursuance of sections 78, 78A or 79,shall be credited to the capital account. Section 123 deals with the questionof the application of the capital account, and it proceeds on the basis thatthe moneys credited to the capital account shall be held by the Board in trust,and by Clause (a) to (h), it specifies the objects or purposes for which the saidamount can be applied. Section 124 refers to items which have to be included inthe revenue account; and s. 125 requires that like the moneys credited to thecapital account, those credited to the revenue account must also be held by theBoard in trust, and the same shall be applied for the purposes specified in Clause(a) to (g) of s. 125(1).

23. Let us now revert to the question about the construction of s. 30(c) ofthe Act. Before answering this question, we would like to recall the materialfacts which are not in dispute. The land in question has been included in theboundaries of the area comprised in the scheme. After the Board framed schemeNo. 53, it has issued a notice under s. 43(1) of the Improvement Act, and asrequired by s. 43(7)(b), while mentioning the boundaries of the area comprisedin the scheme, it has clearly been shown that the land in question is comprisedin the said scheme. In respect of this land, proceedings have been taken unders. 78A of the Improvement Act and betterment fee has been levied and accepted.

24. Mr. Pathak for the respondent contends that as soon as it is shown thatthe land in question was comprised in the scheme and in respect of itbetterment fee has been levied and accepted, s. 30(c) of the Act is attracted.His argument is that such a land is required for carrying out the provisions ofthe Improvement Act. On the other hand, Dr. Barlinge contends that the land inrespect of which betterment fee has been levied cannot be said to be requiredfor carrying out any provisions of the Improvement Act, though it may be thatthe betterment fee would assist the Board in discharging its functions underthe Improvement Act. In deciding the merits of these competing claims, it is necessaryto remember that the dispute in the present proceedings is not between theBoard on the one hand and the landlord or the thika tenant on the other; thedispute is between the landlord and the thika tenants, and in the decision ofthis dispute, the Board is not interested. Whatever be the decision of theCourt in the present dispute will not affect the Board in the discharge of itsduties and functions and will have no impact on the scheme as such.

25. The words used in s. 30(c) of the Act are, in a sense, simple enough;but it must be conceded that the problem of their construction is not veryeasy, and so, we might attempt to resolve this problem by considering what ourapproach should be in construing the relevant provision. Normally, the words usedin a statute have to be construed in their ordinary meaning; but in many cases,judicial approach finds that the simple device of adopting the ordinary meaningof words does not meet the ends or a fair and a reasonable constructions.Exclusive reliance on the bare dictionary meaning of words may not necessarilyassist a proper construction of the statutory provision in which the wordsoccur. Often enough, in interpreting a statutory provision, it becomesnecessary to have regard to the subject-matter of the statute and the objectwhich it is intended to achieve. That is why in deciding the true scope andeffect of the relevant words in any statutory provision, the context in whichthe words occur, the object of the statute in which the provision is included,and the policy underlying the statute assume relevance and become material. AsHalsbury has observed, the words 'should be construed in the light oftheir context rather than what may be either strict etymological sense or theirpopular meaning apart from that context. This position is not disputed beforeus by either party.

26. There has, however, been a sharp controversy before us on the questionas to what is the context to which recourse should be had in interpretingsection 30(c). Mr. Pathak contends that in construing s. 30(c) of the Act, thekey words are 'required for carrying out any of the provisions of theImprovement Act', and he has urged that the task of interpretation of thiskey clause should be attempted by having regard to the context, the object andthe policy of the Improvement Act. In interpreting this clause, the courtshould ask itself : what is the purpose of the provisions of the ImprovementAct which the land is required to serve, before s. 30(c) of the Act can beinvoked And in finding an answer to this question, the court must bear inmind the historical evolution of the legal principles relating to the powersand functions of Improvement Boards. In this connection Mr. Pathak has reliedon the decision of the House of Lords in R. H. Galloway v. The Mayor andCommonalty of London [1866] 1 A.C. 34 In that case a contrastwas drawn between the special powers conferred on persons by Parliament foreffecting a particular purpose, and those conferred on the Mayor and Commonaltyof the City of London to make certain public improvements in the City. It washeld that where a company was authorised to take compulsorily the lands of anyperson for a definite object, it would be restrained by injunction from anyattempt to take them for any other object. On the other hand, where the Mayorand Commonalty of the City of London had been entrusted with powers to makecertain public improvements in the City, and for that purpose had beenauthorised compulsorily to take land, to raise money on the credit of it, andto sell superfluous land to pay off the debt, the Act which gave them thosepowers did not expressly confer on the authorities to acquire more land thanwas absolutely necessary to effect the desired improvements; nevertheless thematerial provisions of the said Act ought to be construed favourably to them,and ought to be interpreted to confer on them the power to take lands 'forthe purposes of the Act', even though they may not be absolutely necessaryfor the improvement scheme as such. In other words, this decision shows thatwhere the Board is entrusted with the work of improving the City and isconstituted for that purpose by a statute, its power to acquire lands for thepurpose of the improvement scheme would include the power to acquire a landwhich is comprised in the scheme, though it may not be absolutely necessary forthe scheme as such; and in such a case, it would be competent to the Boardfirst to acquire the land and then to dispose of it, thereby putting itself inpossession of the necessary funds to discharge its functions and obligations.

27. The same principle has been emphasised by the Privy Council in theTrustees for the Improvement of Calcutta v. Chandra Kanta Ghosh [1919] L.R. 47 We have already referred to Sections 41 and 42 of the Improvement Act.Section 41 enumerates matters which must be provided for in the improvementschemes, whereas s. 42 deals with matters which may be provided for in theimprovement schemes. Section 42(a) lays down that any improvement scheme mayprovide for the acquisition by the Board of any land, in the area comprised inthe scheme, which will, in their opinion, be affected by the execution of thescheme. The question which arose before the Privy Council in the case of theTrustees for the Improvement of Calcutta L.R.1919. Ind Ap 45 was whetherunder s. 42(a), it was competent to the Board to acquire, for the purpose ofrecoupment, land which is not required for the execution of the scheme, but thetrustees are of opinion that the said land would, by virtue of the scheme, beincreased in value. The decision of this question depended, inter alia, on themeaning of the word 'affected' used in s. 42(a). The argument whichwas urged before the Privy Council was that in order that land can be acquiredby the Board under s. 42(a), it must appear that the land falls in the areacomprised in the scheme and would be affected by the execution of the scheme.If the land does not become a part of the scheme itself but remains outside thescheme, it cannot be said to be affected by the scheme; and so, the Board mayhave no power to acquire it avowedly for the purpose of securing recoupmentmoney. The Privy Council rejected this contention and held that the Board wasempowered to acquire land which is comprised in the scheme and would becompetent to sell it and thereby raise funds if it is satisfied that the valueof the land will be enhanced by virtue of the scheme. 'There Would appearto be nothing', said Lord Parmoor speaking for the Board, 'either inthe general scheme of the Act or in the special context which is inconsistentwith giving the word 'affected' its ordinary and normal sense; but itwas suggested in the argument on behalf of the respondent that the Act did notauthorise the Board to acquire land unless it was either physically affected bythe execution of the scheme, or injuriously affected, whether by severance orin some other manner' (p. 54). In rejecting this argument, Lord Parmoorobserved that 'in the opinion of their Lordships, none of the suggestedlimitations to the usual and normal meaning of the word 'affected' ins. 42 are admissible, and that there is no reason, either in the generalpurpose of the Act or the special context, that the word should not be construedin its ordinary sense, and that, as so construed, s. 42 authorises theacquisition of the land of the respondent, which was inserted in the scheme,because in the opinion of the Board, it would be enhanced in value by itsexecution'. Section 78 and s. 78A which has been inserted in theImprovement Act in 1931, in a sense give statutory recognition to the principleevolved by the Privy Council while interpreting s. 42 of the Improvement Act.

28. Basing himself on this aspect of the matter, Mr. Pathak contends thatwhere a land is comprised in the improvement scheme originally notified andbetterment fee is levied later in respect of it under s. 78A, the Board can bedeemed to have taken two steps; it may be said that the Board acquired the landand later, sold it to the owner on the terms and conditions authorised by s.78A. In other words, the argument is that the levy of betterment fee is anotherway of bringing the land within the purview of the improvement scheme and itis, in fact, an alternative way of acquiring it. If that is so, s. 30(c) whichobviously includes lands acquired for the purposes of the scheme, cannot besaid to exclude land which is not directly acquired, but is indirectly placedin the same category of lands, because recovery of the recoupment fee is oneway of acquiring the land. It is on these grounds that Mr. Pathak hasstrenuously contended that the key clause in s. 30(c) should receive a liberalconstruction and the land in question in the present proceedings should be heldto be required for carrying out the relevant provisions of the Improvement Act.

29. On the other hand, Dr. Balinge has emphasised the fact that the sectionwhich we are construing occurs in the Thika Tenancy Act and it is the contextof this Act as well as the object with it seeks to achieve that are relevantand material. There is not doubt that the provisions of the Act are intended toserve the purpose of social justice. The Legislature realised that therelations between the landlord and the tenants in respect of holdings let outto thika tenants under the Act needed to be regulated by statute and it thoughtthat thika tenants deserved some special protection. The Act is thus a measurewhich can be described as social welfare measure, and so, the argument is thats. 30 which provides for an exception to the material provisions of the Act,should be strictly construed, so that the beneficent purpose of the Act shouldnot be unduly narrowed down or restricted. In construing s. 30(e), it would,therefore, be relevant to remember whether it could not have been the intentionof the Legislature to permit a private land-holder whose land has not beenacquired and does not form part of the improvement scheme, to claim immunityfrom the application of the relevant provisions of the Act which giveprotection to the thika tenants; and so, Dr. Barlinge's contention is that itwould be unreasonable to introduce a liberal approach in construing the clause'required for carrying out any of the provisions of the ImprovementAct' as suggested by Mr. Pathak.

30. In our opinion, while construing s. 30(c) it would be necessary to bearin mind the context of the Act in which the section occurs. We have alreadynoticed the broad features of the Act, and the object of the Act to help thethika tenants is writ large in all the material provisions. In the case of sucha statute, if an exception is provided, the provision prescribing the exceptionand creating a bar to the application of the Act to certain cases must, wethink be strictly construed. Take the other clauses of s. 30; they clearlyindicate that it is only lands vested in Government or other special bodies orauthorities that are excepted from the application of the Act. Prima facie, itis not easy to assume that a private landholder like the respondent would bewithin the protection of s. 30 because there is no consideration in his case,as in the case of other authorities or bodies covered by Clause (a) and (b) of s.30, which would justify the exclusion of the Act to his case. That is oneaspect of the matter which we cannot ignore.

31. That takes us to the crux of the problem : can the land in question besaid to be required for carrying out any of the provisions of the ImprovementAct It is significant that it is the land which must be required, and not anyfee or charges that may be levied against it. What s. 30(c) of the Act seems torequire is direct connection between the land as such and the requirements ofthe provisions of the Improvement Act. The other ingredient of s. 30(c) is thatthe land must be required for carrying out the provisions of the ImprovementAct. In the context, this second ingredient of the section seems to suggestthat the land must be necessary for carrying out the provisions as such of theImprovement Act; in other words, we should be able to say about the land inquestion that it was necessary for carrying out a particular provision of theImprovement Act. The third and the last ingredient of s. 30(c) is that thenecessity must be established for carrying out the provisions of theImprovement Act and not the policy of the said provisions or the object whichthey are intended to achieve. Having regard to these ingredients of s. 30(c),the question which calls for an answer is : is it shown that the land inquestion is necessary to carry out any specific provision of the ImprovementAct It is difficult to answer this question in favour of the respondent.

32. It is true that the betterment fee which is levied goes to constitute animportant item in the capital account under s. 122 of the Improvement Act. Itis also true that the Board has the power to levy betterment fee in order thatit should secure enough funds to carry out its obligations under theImprovement Act. Such a power has always vested in the Board and has now beenstatutorily conferred on it by s. 78A. Under s. 81, the Board can acquire moreland than is absolutely necessary for the purpose of the scheme as such, andmay later dispose of superfluous land. The existence of these powers cannot bedisputed. But would it be consistent with the fair construction of s. 30(c) tohold that because the land in question can be made liable to pay betterment feeand the betterment fee thus realised from the land serves the purpose of s. 122of the Improvement Act, the land itself is required for carrying out theprovisions of s. 122 In order that s. 30(c) should be applicable, therespondent must point out a specific provision of the Improvement Act for thecarrying out of which the land as such is required. The provisions of s. 122 ofthe Improvement Act do not help the respondent, because it is not possible tohold that for carrying out the provisions of s. 122, the land in question isdirectly required.

33. There is another aspect of the question to which we ought to referSection 78A, like s. 78, deals with lands which in terms are not required forthe execution of the scheme. These two sections provide for two categories oflands, both of which were originally comprised in the scheme, but are laterfound to be not required for the scheme. Now, when s. 78A expressly says thatthe land in respect of which betterment fee can be levied, is not required forthe scheme, it is not easy to accept the argument that such a land isnevertheless required for carrying out the provisions of s. 78A. In construings. 30(c), it is necessary to distinguish between the carrying out theprovisions of the Improvement Act, and the achievement or the accomplishment ofthe objects of the said provisions. In one sense, the land in question doesserve the purpose of the Improvement scheme, because the betterment fee whichis levied on it swells the funds of the Board and the funds are utilised by theBoard for the purposes of carrying out the scheme; but the requirement of theland for carrying out the provisions of the Improvement Act which alone caninvoke s. 30(c), cannot be said to be satisfied by this indirect connectionbetween the land and the general purpose of the Improvement Act.

34. There is one more aspect of this problem which is not irrelevant.Betterment fee is levied against a land, because its value is increased as aresult of the improvement scheme, and so, s. 78A authorises the Board to levybetterment fee presumably on the ground that the Board is justified inrecouping itself by such levy in respect of unearned increment in the value ofthe land of which the land-holder gets a benefit. If the land-holder paysbetterment fee for such unearned increment in the value of the land, he mayapply under s. 25 of the Act for enhancing the rent payable by the thikatenants to him. But there appears to be no reason why a landlord, the value ofwhose land had increased by the improvement scheme introduced in the area inwhich his land is situated, should get the additional benefit of exemption fromthe application of the provisions of the Act which give protection to thetenants.

35. Having carefully considered the question of construing s. 30(c), we havecome to the conclusion that the words used in s. 30(c) do not justify theconclusion that a private landholder is intended to be equated with Governmentor with the other special bodies or authorities whose lands are exempted fromthe operation of the Act by s. 30. We do not think that the Legislatureintended that the provisions of the Act should cease to apply to all landswhich are comprised in the scheme, because such a provision would appear to beinconsistent with the categories of cases covered by Clause (a) & (b) of s.30. Besides, if that was the intention of the Legislature in enacting s. 30(c),it would have been easy for the Legislature to say that lands comprised in theimprovement schemes should be exempted from the application of the Act. Section30, as we already emphasised, provides for an exception to the application ofthe beneficent provisions of the Act, and it would, we think, not beunreasonable to hold that even if s. 30(c) is reasonably capable of theconstruction for which Mr. Pathak contends, we should prefer the alternativeconstruction which is also reasonably possible. In construing the provisionswhich provide for exceptions to the applicability of beneficent legislation, iftwo constructions are reasonably possible, the Court would be justified inpreferring that construction which helps to carry out the beneficent purpose ofthe Act and does not unduly expand the area or the scope of the exception.Therefore, we are satisfied that the Court of Appeal was in error in reversingthe conclusion of the trial Judge that the present suits filed on the originalside of the Calcutta High Court were incompetent.

36. There is, however, one more point to which we ought to refer before wepart with these appeals. Both the learned Judges in the Court of Appeal haveobserved that if s. 30(c) is held not to apply to the land in question on theground that it is not required for carrying out any of the provisions of theImprovement Act, s. 30(c) would, in substance, become redundant. The argumentwhich was thus urged before the Court of Appeal and has been accepted by it,assumes that the Board is a local authority within the meaning of s. 30(b)(iv)and as such, the land which has vested in the Board is already excepted fromthe operation of the Act by the said provision; and that means that the landsacquired by the Board under the provisions of the Improvement Act have alreadybeen provided for by s. 30(b)(iv). If that is so, there would be no cases towhich s. 30(c) can apply. Since this point arises incidentally in construing s.30(c), we do not propose to decide in the present appeals whether the Board isa local authority within the meaning of s. 30(b)(iv). In dealing with thisparticular argument, however, we are prepared to assume that the Board is sucha local authority. Even so, it is possible to hold that s. 30(c) does notbecome redundant, because though s. 30(b)(iv) may include lands acquired by theBoard, there may still be some other lands which are not acquired by the Boardbut which, nevertheless, may be required for carrying out some provisions ofthe Improvement Act. Take, for instance, s. 42 of the Improvement Act. Section42(b) lays down that any improvement scheme may provide for raising, lowering,or levelling any land in the area comprised in the scheme. Section 42(c)provides for the formation and retention of open spaces. Similar provisions aremade by s. 35C(1)(i) and (j) as introduced by the Amending Act 32 of 1955. Itis possible to take the view that the lands required for the purposes specifiedin these provisions of s. 42 or s. 35C of the Improvement Act are requiredwithin the meaning of s. 30(c) of the Act, though they may not have beenacquired. But apart from this consideration, the argument that s. 30(c) wouldbecome redundant cannot, we think, be treated as decisive, because it is notunknown that the Legislature sometimes makes provisions out of abundantcaution. When s. 30(c) was enacted in 1949, the Legislature may have thoughtthat in order to avoid any doubt, dispute or difficulty in regard to thequestion as to whether the Board would be a local authority or not, it would bebetter to make a specific provision in respect of lands which are acquired bythe Board as well as those which would be required for the purpose of carryingout the provisions of the Improvement Act. It is true that the lands which arerequired within the meaning of s. 30(c) would include lands which are actuallyacquired as well as those which might not have been acquired but are,nevertheless, required for carrying out the provisions of the Improvement Act.But having specified respective authorities or bodies in Clause (a) & (b) ofs. 30, the Legislature may have thought that it would be better to refer to theImprovement Act and lands required for carrying out its provisions,specifically and expressly. Having regard to the considerations on which ourinterpretation of s. 30(c) is based, we are not prepared to attach unduesignificance to the argument based on the assumption that the Board is a localauthority within the meaning of s. 30(b)(iv) and that would make the provisionsof s. 30(c) either superfluous or would deprive the said provisions of anysignificance or importance.

37. The result is, the appeals are allowed, the decrees passed by theDivision Bench are set aside and those of the trial Judge restored with coststhroughout.

38. Appeals allowed.


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