A.N. Sen, J.
1. The validity of Scheme No. 103 of the Trustees for the Improvement of Calcutta forms essentially and basically the subject matter of challenge in this proceeding. The petitioner claims to carry on business of packing box manufacturing at premises No. 8/C. Free School Street, now known and numbered as 8/C. Mirza Galib Street. Calcutta, under licence issued by the Corporation of Calcutta and the petitioner has stated that ho pays occupier's share of taxes of the said premises. The petitioner has also stated that he pays rent to the lessee of the premises. The petitioner however did not produce any receipted bill of the Corporation or any rent receipt along with the petition. The petitioner has annexed to his affidavit-in-reply a copy OF his trade licence of 1960 and produced in course of hearing trade licence for the years 1963 to 1972-73. On the basis of the said scheme, which was sanctioned sometime in 1964, premises No. 8/C, Free School Street of which the petitioner claims to be an occupier, has been acquired. It is the case of the petitioner that the petitioner came to know of the said scheme and the acquisition of the said property from the police officer who came to his shop room on the 25th March, 1975 and prior to that date the petitioner had no knowledge of the said scheme or the acquisition of the said property on the basis of the said scheme.
2. The petitioner filed this petition under Article 226 of the Constitution on the 29th March. 1975, and obtained a rule and also an order of injunction restraining the respondents from taking further action on the basis of the said scheme. Thereafter the petitioner made an application for amendment of the petition. It was stated by the learned Counsel appearing in support of this application that by the proposed amendments no new grounds are sought to be introduced but the proposed amendments were indeed necessary for elaborating the grounds already taken in the petition and by the proposed amendments certain additional new materials and facts were sought to be incorporated. The said application for amendment was contested by the respondents and it was contended that the said application was indeed mala fide and was made for the purpose of delaying the hearing of the proceeding. I directed the said application for amendment to be heard along with the petition. The said application for amendment has also been heard along with the petition. I had allowed Mr. Dutt, the learned Counsel for the petitioner, to make his submissions on the basis of the statements contained in the proposed amendments. I have not treated the application for amendment separately and I have not made any separate order on the said application for amendment, as in my view a separate order in the said application for amendment would have delayed the hearing of this matter and on behalf of the Authorities it was urged before me that the matter was indeed very urgent. I also felt that if I were to allow the said amendments by a formal order, it would be necessary for me to allow the parties concerned to file further affidavits with regard to the amended petition and in such a case the matter would undoubtedly be delayed and the question of continuance of the interim order under such circumstances had to be considered. Under these circumstances I thought it best that I would hear the application for amendment along with the main petition and after hearing the parties if I thought that it would be necessary to pass any separate and formal order on the application for amendment I would do so. As I have already observed I allowed Mr. Dutt the learned Counsel who arfiued the matter on behalf of the petitioner, to make his submissions on the basis of the proposed amendments in the amendment application, as if the said amendments had been allowed.
3. Mr. Dutt. learned Counsel appearing on behalf of the petitioner, has raised three principal contentions;
(i) The entire scheme is mala fide end is not in public interest.
(ii) The Scheme had been framed in violation of the statutory provisions particularly in violation of the provisions contained in Section 43 and Section 45 of the Calcutta Improvement Act and the scheme is also otherwise illegal.
(iii) Framing of the scheme and the sanction of the scheme by the appropriate authorities were done without any application of mind and have further been done in colourable exercise of their powers.
4. On the question of mala fide Mr. Dutt has argued that the facts and circumstances of the case go to indicate that the scheme had been framed at the instance of one Mr. N.L. Dalmia, who happens to be the owner of No. 13 Lindsay Street and had constructed a multistoreyed building there and the scheme is not for any public purpose or for any public benefit. In support of this contention Mr. Dutt has drawn my attention to the statements made in paragraphs 3 and 4 of the petition and he has pointed out that the suggestions for the scheme had in fact come from Mr. Dalmia. According to Mr. Dutt, this goes to show mala fides on part of the Authority concerned.
5. Mr. Dutt has next contended that the statutory requirements of Sections 43 and 45 of the Calcutta Improvement Act have not been complied with. It is the contention of Mr. Dutt that it Js for the authorities, to satisfy the Court that the said requirements have in fact been fulfilled, Mr. Dutt has however fairly stated that in view of the provisions contained in Section 49 (2) of the Act he cannot urge that the scheme becomes illegal for non-compliance of the requirements of the statute, as under the provisions contained in Section 49 of the Calcutta Improvement Act, the publication of the notification of the sanction by the State Government will be conclusive evidence that the scheme has been duly framed and sanctioned and in the instant case it is not disputed that the said sanction of the State Government has been duly published. Mr. Dutt has however argued that if in fact it be established that the requirements of Sections 43 and 45 have not been complied with, then the sanction will be a colourable exercise of the power and will indeed be mala fide. It is the contention of Mr. Dutt that colourable exercise of the power and the mala fides on the part of the Authorities concerned will vitiate the scheme and the entire proceedings in respect thereof. Mr. Dutt has also argued that the scheme should be considered to be illegal, as in the scheme there is a provision with regard to levy of betterment fees and it is the argument of Mr. Dutt that, levy of betterment fees provided under Section 78 (a) of the Calcutta Improvement Act, 1911, has been held to be illegal and ultra vires by a Division Bench of this Court in the case of Chandra Sekhar Mullik v. Calcutta Improvement Trust. (Civil Revn. Nos. 4110 and 4111 of 1964; judgment delivered on 1-12-1972 (Cal)). Mr. Dutt unfortunately, however was not in a position to make available to me a copy of the iudgment or to have the judgment produced in course of hearing. Mr. Dutt in this connection also referred to the decision of the Division Bench in the case of Nanda Kumar Banerjee v. Board of Trustees for the Improvement of Calcutta, reported in : AIR1957Cal578 . On the basis of the aloresaid contentions Mr. Dutt has submitted that the rule in the instant case should be made absolute.
6. On behalf of the Calcutta Improvement Trust, Mr. Chaudhuri. learned Counsel, has submitted before me that there, is no substance in any of the contentions raised by Mr. Dutt. He has argued that there are indeed no proper averments in the petition to found a case of mala fides. It is his argument that the suggestion of the improvement emanated from a particular person does not make the action of the authorities mala fide. He has drawn my attention to the further statements in the said report mentioned in paragraph 3 of the petition and has pointed out that the Chairman himself had inspected the site. Mr. Chaudhuri has argued that there cannot be any doubt that the scheme in question is for public purpose. MT. Chaudhuri has next contended that all the formalities required under the law have been duly complied with. In this connection Mr. Chaudhuri made available to me the relevant records and also cited the judgment delivered by me on the 4th March, 1975, in matter No. 264 of 1966 (F.K. Sheikh v. State of West Bengal) in which I had occasion to consider the legality and the validity of this very scheme. Mr. Chaudhuri has submitted that while dealing with that case, all available records were placed before the Court which I had considered and on a consideration of the records I had held that the requirements had been duly complied with. Mr. Chaudhuri has argued that in the instant case on identical grounds similar contentions have been raised and he is producing before me the very same records. It is his submission that following the earlier decision I should hold in the instant case that the requirements have in fact been complied with. Mr. Chaudhuri also argues that in the instant case it is not in dispute that the necessary notification under Section 49 (1) has been published and the said notification is conclusive evidence under Section 49 (2) that the scheme has been duly framed and sanctioned. It is his argument that as the notification as provided in Section 49 (I) has been duly published, the Court must hold by virtue of the provisions contained in Section 49 (2) that the scheme has been duly framed and sanctioned. Mr. Chaudhuri argues that there is no substance in the contention that the framing of the scheme or according sanction thereto by the State Government has been done in any colourable exercise of tile powers conferred on the authority concerned. It is the argument of Mr. Chaudhuri that widening of the Lindsay Street is a crying need of the city and all necessary formalities have been duly complied with by the authorities concerned and the Government on a proper consideration had accorded its sanction, and therefore, there cannot be any question of any colourable exercise of the powers by any of the authorities. Mr. Chaudhuri has further argued that the levy of betterment fees has been subsequently withdrawn. It is the argument of Mr. Chaudhuri that the levy of betterment fees is clearly severable from all other parts of the scheme and as the said levy of betterment fees is now withdrawn, there cannot be any question of any illegality with regard to the scheme by virtue of any provision in the scheme as to levy of betterment fees. Mr. Chaudhuri has further argued that in the petition or in the amended petition no point has been taken that the scheme is bad and illegal as it included the provision with regard to levy of betterment fees. Mr. Chaudhuri has further argued that levy of betterment fees by itself is not illegal or unconstitutional. Mr. Chaudhuri has also contended before me that the present petition is clearly mala fide and has been made after a lapse of 10 years and should not be entertained. He has argued that the facts and circumstances of this case clearly go to indicate that the petitioner had knowledge of the scheme years ago, as the petitioner had raised an objection before the authorities with regard to the scheme as early as 1963. Mr. Chaudhuri has contended that the submission of the petitioner that the petitioner did not make any representation and the rubber stamp in the objection filed before the authority is not the rubber stamp of the petitioner should not indeed be entertained by this court and according to Mr. Chaudhuri in any event the said contention of the petitioner clearly raises a disputed question of fact which in this jurisdiction cannot be properly investigated into and enquired into by the Court.
7. Mr. Roy Chaudhuri, learned Counsel appearing on behalf of the Land Acquisition Collector has mainly adopted the submissions made by Mr. Chaudhuri He has however argued that the petition should fail on the ground of delay. He has also commented that no argument has been advanced by Mr. Dutt as to any violation of the provisions of the Land Acquisition Act.
8. I have to observe that though one of the main grounds taken in the petition was that the scheme in the absence of any provision for making arrangements for the rehousing of the petitioner must be considered to be bad has not been argued or pressed at the hearing by Mr. Dutt. As I have already noted Mr. Dutt rested his arguments on the main ground that the scheme is mala fide and that the scheme had been framed and sanctioned in colourable exercise of the powers of the authorities concerned. As I have already noted, Mr. Dutt has argued at length with reference to the provisions contained in the statute about the necessary formalities required to be complied with in properly framing the scheme; but in view of the provisions contained in Section 49 of the Act, Mr. Dutt has mainly based his submission on the broad ground that the entire scheme is mala fide and has been done in colourable exercise of the powers of the Authorities concerned.
9. In the facts and circumstances I have no hesitation in rejecting the contention of Mr. Dutt that the framing of the scheme has been done mala fide. In my opinion there are no proper averments in the petition to found a case of mala fides. The mere fact that a suggestion has been made by somebody does not make the act of the authorities concerned mala fide. There cannot be any doubt, in my opinion, that the widening of the Lindsay Street from the Free School Street side is of general public interest. I have therefore, no hesitation in rejecting the contention of Mr. Dutt that the authorities acted mala fide in framing the scheme and that the scheme is not for any public interest.
10. In the case of F.K. Sheikh v State of West Bengal. (Matter No. 264 of 1966 (Cal)). I had occasion to consider whether the statutory formalities with regard to the scheme have been complied with or not. On a consideration 'of the relevant records I was satisfied that the relevant formalities of law have been duly complied with. In the instant case, the said records were produced before me. Following the decision in the case of F.K. Sheikh and on the basis of the records I have no hesitation in coming to the conclusion that the statutory requirements for properly framing the scheme have duly been complied with and the scheme has been duly framed. I have to observe that in the instant case it is not in dispute that the State Government has duly sanctioned the scheme and the sanction of the scheme has been duly published in terms of the provisions contained in Section 49 of the Act. TO my mind, the said publication of the sanction is conclusive evidence that the scheme has been duly framed and sanctioned. As I have already observed, the necessary requirements have in fact been duly complied with and scheme is essentially for a public purpose and the authorities have not acted mala fide in the matter of framing the scheme and on the basis of the aforesaid findings I have no hesitation in rejecting the contention of Mr. Dutt that the scheme must be considered to be bad as the authorities must be considered to have framed the scheme and accorded sanction without any application of their minds in colourata.le exercise of their powers. I have to observe that the scheme cannot be considered to be bad as the scheme contained the provision with regard to levy of betterment fees. There is no allegation in the petition and also in the proposed amended petition that the scheme is illegal as the scheme contained a provision with regard to levy of betterment fees and levy of betterment fees is ultra vires the powers of the authorities concerned. In the absence of any such averment or allegation in the petition or in the petition for proposed amendments, it is not open to the petitioner to raise this contention. There is also no allegation in the petition that withdrawal of levy of betterment fees was without the sanction of the Government. There is also nothing to indicate that sanction of the Government was necessary. To my mind the withdrawal of the levy of betterment fees from the scheme does not make the scheme illegal. The decision of the Division Bench in the case of Nanda Kumar Banerjee v. Board of Trustees for the Improvement of Calcutta, reported in : AIR1957Cal578 is no authority for the proposition that inclusion of the levy of betterment fee in a scheme makes the scheme illegal. The said decision lays down that Sub-section (1) of Section 78-A of the Calcutta Improvement Act goes no further than to provide for the charging of a betterment fee in respect of land which in the opinion of the Board, will increase in value as a result of the execution of the scheme. The said decision further lays down that no question of computing the fee under Sub-section (2) or levying the fee can however arise till the stage indicated by Section 78-B (1) has been reached. In the instant case it is to be noted that the proposal to levy betterment fees has indeed been withdrawn. As I have already noted. Mr. Dutt referred to the unreported decision of the Division Bench in Civil Revn. Nos. 4110 and 4111 of 1964 (Chandra Sekhar Mullick v. Board of Trustees for the Improvement of Calcutta) judgment of which, it was stated by Mr. Dutt, was delivered on 1-12-1972 (Cal). Unfortunately. Mr. Dutt was not in a position to cite the said decision as the judgment could not be produced. I am, therefore, not in a position to deal with the said decision. Even if it be the effect of the said decision to declare Sections 78-A and 78-B of the Calcutta Improvement Act ultra vires, on which question I express no opinion as I am unable to, without considering the judgment I am of the opinion that the said decision cannot have any effect on the validity of the scheme or otherwise. As I have already observed no such case has been made in the petition or in the petition containing the proposed amendments. In the absence of any averment made by the petitioner the petitioner, in my opinion, is not entitled to urge this question at the hearing.
11. There seems to be consider-1 able force in the argument of the respondent that the petition should not be entertained on the ground of delay. It is the definite case of the Board made in the affidavit of its Chairman that the petitioner had full knowledge of the scheme and its proceedings and the petitioner had in fact made representations as early as 26th July, 1963. The fact of making such representations by the petitioner has been denied by the petitioner in the affidavit-in reply. The said question, therefore, is a disputed question of fact. Without going into the merits of the said question and trying to decide the same on this application, to my mind, it is clearly inconceivable and incredible that the petitioner would not know of the scheme or of the proceedings, if the petitioner had in fact been residing and carrying on his business in the particular premises for all these years. It is indeed unfortunate that the scheme, which is a very old one and for implementation of which large amounts of money have been spent by way of compensation to the parties entitled to the same is being held up and has remained held up for such a long time. As I observed in the case of F. K. Sheikh, Matter No. 264 of 1966, D/- 4-3-1975 (Cal) the authorities concerned to a great extent are not wholly free from blame for this delay. It appears that the persons interested in delaying the implementation of the scheme are taking all kinds of actions to see that the scheme is not implemented for serving their own interest. I am, therefore, of the opinion that there is no merit in this application. I have already held that so far as the ground of mala fides urged there are no proper averments and the facts and circumstances clearly go to indicate that the authorities concerned have not at all acted in any mala fide manner in the matter of framing the scheme and in implementing the said scheme. I wish to observe that a copy of the plan has been exhibited on behalf of the petitioner to raise a contention that the premises in question are not really required for the purpose of widening the street. I am unable to accept this contention. It is quite clear that the authorities concerned had duly applied their minds as to the re-requirements and the government on being satisfied had given the necessary sanction. I have also held on a consideration of the relevant records which were produced that the requirement, of the statute had in fact been complied with. The same view has also been expressed by me in the case of F.K. Sheikh. I have also found that there are no materials which can go to indicate that there has been any colourable exercise of the powers on the part of the authorities concerned or that they have acted mala fide in the matter. So far as the ground urged on the question of inclusion of betterment fee in the scheme and the subsequent withdrawl of the said levy, I am clearly of the opinion that in the absence of proper averments in the petition and also in the proposed amendments, the petitioner is not entitled to urge that ground and in my view in any event there is no substance in that contention.
12. To my mind the present case appears to be largely covered by my decision in the case of F.K. Sheikh v. State of West Bengal, in Matter No. 264 of 1966 wherein I delivered judgment on 4th March, 1975 (Cal).
13. The Rule is therefore discharged. The petition is dismissed. All interim orders will stand vacated. There will however be no order as to costs. Stay is orally asked for and it is refused.