Asutosh Mookerjee, J.
1. This is an appeal by the plaintiff in a suit to test the validity of an order made by the Calcutta Improvement Trust rejecting his application for exemption Under Section 78 of the Calcutta Improvement Act, 1911. The plaintiff made an application on the 31st August 1918, on the assumption that the land in dispute was not required for the execution of the scheme within the meaning of Sub-section (1) of Section 78. Reference was thereupon made to the Land Acquisition Collector and the Deputy Valuer and the proceedings for acquisition were temporarily stayed. The Board, after enquiry, came to the conclusion that the land was required for the execution of the scheme and rejected the application. The plaintiff accordingly instituted this suit, for twofold relief, namely, first, 'that the proceedings for the acquisition of the said premises No. 41-3 Jeliatola Street and No. 7-1 Jorapuker Lane by or on behalf of the defendants, the Trustees, may be ordered to be finally stayed and the defendants, the Trustees, ordered and decreed to conform to and carry out the provisions of Section 78 in manner stated in the fifteenth paragraph of the plaint and abandon the proceedings for the acquisition of the said two premises in accordance with the provisions of the said section;' and, secondly, for 'the declaration that the said resolution of the defendants, the Trustees, in so far as it rejected the plaintiff's said application, was and is illegal and ultra vires and void and that the same may be ordered to be set aside.'
2. Mr. Justice Rankin has dismissed the suit on the ground that the plaintiff had failed to satisfy him by evidence that the property was not required for the execution of the scheme. The appellant has contended, that the burden of proof should not have been thrown upon him and that in view of the proceedings taken by the Board under Section 78, it should have been presumed that the land was not required for the execution of the scheme. Our attention has also been drawn to Section 39 of the Act, which sets cut the circumstances under which a street scheme may be framed, as also to Section 41 which sets out the matters required to be provided for in improvement schemes. Section 39 provides that whenever the Board are of opinion that, for the propose of (a) providing building sites, or (b) remedying defective ventilation, or (c) creating new, or improving existing, means of o immunisation and facilities for traffic, or (d) affording better facilities for conservancy, it is expedient to lay out new streets or to alter existing streets (including bridges, causeways and culverts), the Board may pass a resolution to that effect and shall then proceed to frame a street scheme for such area as they may think fit. Section 41 provides inter alia that every improvement scheme shall provide for (a) the acquisition by the Board of any land, in the area comprised in the scheme, which will, in their opinion, be required for the execution of the scheme; and (b) the laying out or relaying out of the land in the said area. In the case before us, a scheme was prepared by the Board Under Section 39 and was submitted to the Government for approval. The scheme is not set out in a compact form and it is difficult to determine from the various papers embodying it the precise scope of the scheme; but this much is clear that the scheme was undertaken because the Board were of opinion that for the purposes of providing building sites, remedying defective ventilation, or creating new, or improving existing means of communication, it was expedient to lay out new streets or to alter existing, streets in Ward No. VI and its neighbourhood. The scheme further stated that building sites should be provided and would be plotted in accordance with public demand, and this was supplemented by the observation that generally there would be a ready market for plots of from 6 kattahs to 1 bigha. It has been contended by the Advocate-General on behalf of the claimant that the scheme was ultra vires, because building sites were not demarcated on the plans. We are unable to give effect to this contention. We can find nothing in the Act which compels the Trust to delineate on the plan the building sites before the scheme is submitted to Government for sanction. In this case, when the matter was under investigation by the Board, the Assistant Valuer stated that the disputed property was too small to form an independent building site on a 100 feet main thoroughfare. He recommended accordingly that the properties should be amalgamated with neighbouring parcels to form a suitable plot. The Board came to the conclusion that this view was correct and that if the application were granted, the result would be that the holding would not fit in with the layout. The plan placed before us shows that this opinion was reasonable and well founded. There can thus be no doubt that the Board came to this conclusion bona fide, and, Mr. Justice Rankin correctly held that there was no evidence to show that the land was not required for the execution of the scheme, within the meaning of sub Section 1 of Section 78. Consequently, there was no basis for the application to the Trustees; nor is there any ground for complaint in this suit, for the fact that they made enquiries under Sub-section 2 of section.78 does not disentitle them ultimately to reject the application on the ground that it does not come within Sub-section (1) of that section. The result is that the decree of Mr. J entice Rankin is affirmed and this appeal dismissed with costs.
3. I agree.