1. The appellants arc the owners of premisesNo. 55-A, Raja Raj Ballav Street, situated in thenorthern part of Calcutta. It is a fairly commodious house, built on 8 kottas of land and standingon its own grounds 01 12 more kottas. The houseis a three-storeyed one and there is a foundationonly 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 ofcomparatively 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 betterment fee from their lands. The notice contemplated by the section was served in the present case on the appellants on the 6th April 1948. It told them that if they desired to object to the recovery of the betterment fee, they should state their reasons in writing within 60 days from the date of the service of the notice. It appears that a written objection was filed by the appellants. According to the summary entered in the books of the Trustees, the objection taken was that in view of the existing amenities of the premises and the fact that the dwelling house of the appellants at No. 26 Raja Raj Ballav Street had already been acquired, there was hardly any reason for including the premises in the scheme for the levy of a betterment fee. Thereafter, a further notice appears to have been served on the appellants, informing them that a Committee had been formed to hear objections to the scheme and that 3rd of August 1948, had been fixed for hearing the appellants on the objection filed by them. No one on behalf of the appellants appeared before the Committee on the 3rd August 1948. The Committee heard such of the objectors as appeared before them on the different dates fixed and recommended certain modifications. Those modifications were accepted by the Board and they submitted the scheme to Government, as so modified, for their sanction. Sanction was duly given and it was published on the 12th May 1949. By virtue of the provisions of Section 49 (2) of the Act, the publication of the notification was to be taken as conclusive evidence that the scheme had been duly framed and sanctioned.
7. Thereafter, nothing appears to have been done by the appellants for over three years till the 17th December 1953. On that date, a pleader, acting for them, sent a notice to the Chairman of the Trust, by which he called upon the Chairman to exclude the property from any levy of a betterment fee. It was said that in spite of the objection taken by his clients, the Chairman had informed them that he had retained the property as liable to a betterment fee. The letter ended by saying that unless the writer heard from the Chairman within four days, his clients would take such steps in the matter as they might be advised to take without further reference to the Chairman.
8. Apparently, no reply from the Chairman was received. On the 7th January 1954, the petitioners moved this Court under Article 226 of the Constitution and asked for the issue of an appropriate writ upon the Board of Trustees for the Improvement of Calcutta and the Chairman of the Board to show cause why their property should not be excluded from the scheme and why the decision of the Board to levy a betterment fee upon the premises should not be revoked and set aside. A Rule was issued on that application by Sinha, J., but at the final hearing of the Rule, he himself discharged it. Thereupon, the present appeal was preferred.
8-a. I shall presently deal with the contentions of the appellants, but I might state at the very outset that, in my view, their application was liable to be thrown out at sight on the ground of delay. The application with which they came to Court was one of the most peculiar that I have seen. Except the date on which the pleader sent his notice of demand, no other date was mentioned at all and reading the petition, one would not suspect that the petitioners were complaining of an action which had been taken by the respondents as long as about four years back. It will be remembered that the notice under Section 45 of the Act was served on the appellants on the 6th April 1948. They had thus direct knowledge that their property was being sought to be brought under a charge of a betterment fee. They were given an opportunity for making oral submissions in addition to the written objection filed by them, but they failed and neglected to avail themselves of that opportunity. They did not seem to have made any enquiries as to what had happened to their objection and therefore could not have thought that the objection had been allowed and their property had been excluded from the scheme. The sanction of the Government was published on the 12th May 1949, and then at least they ought to have come to know that their property had been finally included in the scheme and that so far as the Act went, the propriety or the regularity of the inclusion could no longer be challenged. Yet, they did not choose to take any steps to move this Court till the 7th January, 1954. Mr. Mallik, who appeared on their behalf before us, contended that his clients were not supposed to know what the Trust was doing & that it was only recently, when a notification under Section 6 of the Land Acquisition Act had been published, that they came to realise that the project was being proceeded with. That explanation does not impress me and I imagine that Mr. Mallick overlooked what his clients themselves had been saying. The pleader's letter, written on the 17th December 1953. said in distinct terms that the Chairman had informed the appellants that he had decided to retain the property among the properties chargeable to a betterment fee. In para. 3 of his affidavit, affirmed on the 20th August 1954, one of the appellants, Harendra Kumar Banerjee, stated that officers of the Trust had intimated to him that their instructions were to include all properties within the scheme in which the land only would be increased in value and that that was the reason why the property in question had come to be included for the purpose of the levy of a betterment fee. On their own showing, therefore, not merely the officers of the Trust but the Chairman himself had informed the appellants of thefinal decision to charge the premises to a fee. If that was so, it was upto the appellants to state to the Court when they had received that intimation from the Board and to establish that they had come with their application within a reasonable time from the receipt of such intimation. Mr. Mallick also contended that till steps were commenced for acquiring the land intended to be included in the scheme, a scheme remained only a scheme on paper and, therefore, his clients were not required to move this Court before the publication of the notice under Section 6 of the Land Acquisition Act. I do not think that that excuse is open to Mr. Mallick's clients, because it was nowhere stated in the petition that the petitioners had come to realise after the publication of the notice under the Land Acquisition Act that the Trust was in earnest about proceeding with the scheme and it was, therefore, that they were now moving in the matter. Even the pleader's letter did not allege that the publication of the notice under Section 6 of the Land Acquisition Act had warned the petitioners of the coming danger and that it was, therefore, that they were asking the Chairman through him to exclude their property from the scheme. In my view, not only is it open to the appellants to rely upon the notice under Section 6 of the Land Acquisition Act as an explanation of the delay, but it also does not appear that the publication of that notice was. in fact, the real reason of the appellants' thinking at last of taking some action. We did not allow Mr. Mallick to show us the notice under Section 6 of the Land Acquisition Act, for thereby he would be giving fresh evidence before the appellate Court on a fresh point, but he informed us that the notice had been published in 1952. Even computed from the time when the notice under the Land Acquisition Act had been published, the time taken by the appellants to come to this Court with an application could not possibly be regarded as reasonable time. In my view, a Derson desiring to invoke the jurisdiction of this Court under Article 226 of the Constitution must always act with reasonable diligence. If he comes after four years of the date of the action of which he complains, he cannot expect his application to be entertained. Mr. Mallick submitted that the wrong of which his clients were complaining was a continuing wrong and that, therefore, the Question of their being late could not arise. I am unable to accept that view of either the wrong complained of or the duty of the appellants, because What they are complaining of is the inclusion of their property in the scheme and that inclusion having taken place as long ago as in 1949, it could not possibly be said that they were entitled to come at any time. It is not as if the Trust was charging the property to a recurrent fee.
9. It appears, however, that no objection was taken before the learned trial Judge that the application of the appellants was belated. The Advocate-General who appeared for the respondents ir the Court below was not appearing before us and therefore we had no means of knowing why the objection was not thought of or taken. The fact, however, remains that it was not taken. In those circumstances, it appears to me that We cannot throw out the application of the appellants in the appeal on the ground of delay. Although it is the duty of an applicant under Article 226 to satisfy the Court that he has come within reasonable time he can, with some reason, say. when no objection is taken before the trial Judge, that if such objection had been taken, he would be able to show that he had good and sufficient grounds for not coming earlier. I shall, therefore, proceed to consider the appeal on its merits.
10. I may say at once that the grievance with which the appellants came to Court does not appear to be altogether without substance and Mr. Meyer, who appeared on behalf of the respondents, himself conceded that a great deal could be said in favour of the considerations which the appellants were urging. Briefly stated, their complaint appears to be as follows: 'They have a house which is a fairly good and sound structure and against the old setting of the locality, it stood out as a valuable property. In view of the surroundings as they were or perhaps even as they are now and the nature of the surrounding streets and buildings, its economic value was fairly high. But if the locality is developed and a wide and modern road is laid out by its side and the old structures round about the building are replaced by larger structures of modern design, the house will at once become a misfit in the new lay-out of the locality and its value, instead of being increased will be diminished. It is true that the surroundings are going to be developed and the locality is going to be made more attractive, but in order that those advantages resulting from the execution of the scheme can be beneficially exploited, it is necessary that the building should be completely overhauled and replaced by a higher and a larger building of a modern design and . construction. The existing structure has a foundation for only three storeys and therefore it will not be possible to put up more storeys on the structure as it is. In order that it may be possible to acquire the full benefit of the improvements effected by the scheme, it Will thus be necessary to dismantle the existing structure and to rebuild on the site at a much larger scale, but alterations of that character will require a large capital outlay which the appellants are unable to provide. In those circumstances the only consequence of improvements being effected round about their building & of their building standing out there as it is, will be that, in fact, the value of the building will depreciate but at the same time the owners will be charged to a betterment fee, I put it shortly, they will have to buy a depreciation for a price. This result it was said, would have been avoided, if the Act had provided a rational method for ascertaining whether a particular piece of land had really appreciated in value as a result of the execution of a scheme and if it had appreciated, what the measure of that appreciation was. Instead, Section 78-A (21 had laid down a method 'Which was not based, on any intelligible principle, but on the other hand, led to the curious result of an appreciation of value being found even in cases where there had in fact been a depreciation. Cases where a piece of land is saddled with an existing structure of a comparatively outmoded type were given as illustrations. Section 78-A (2) provided that the increased in value resulting from the execution of the scheme was to be ascertained by taking into consideration only the land as it stood prior to the execution of the scheme and as it stands upon the completion of the execution, without taking into account in either case, the structures standing thereon. The result was that where the structures were or had become, in view of the execution of the scheme, an uneconomical encumbrance, but in computing the increase in value they were to be disregarded, the method provided for in the section led to the finding of an artificial increase in value which was completely opposed to fact and which made the owners liable to pay a betterment fee for not merely a non-existent betterment but for a very real and palpable downgrading of their property.
11. The complaint of the appellants being as I have endeavoured to summarise, though perhaps inadequately, they tried to express it in terms of the Constitution in the following way. They said that Article 19(3)(f) of the Constitution guaranteed to them the right to acquire, hold and dispose of property. It had been held by the Supreme Court that the right to hold property includes the right to possess and enjoy all the benefits which are ordinarily attached to the ownership of property. Article 10(1)(f) therefore, guaranteed not merely the right to hold property, but also the right to enjoy the profits thereof. It was true that under Clause (5) of the Article, the State had the right to make laws, imposing reasonable restrictions on the exercise of any of the rights guaranteed by Article 19(1)(f). The State was thus entitled to impose reasonable restrictions on the right to enjoy the profits of property, but the restrictions imposed by Section 78-A (2) of the Calcutta Improvement Act were not reasonable restrictions. It could not be denied, since they provided for the compulsory levy of a betterment fee and therefore for the taking away of a part of the profits of the property that they constituted restrictions on the enjoyment of the profits. Those restrictions were not reasonable, because the method prescribed for the computation of a betterment fee was an arbitrary and unintelligible method, leading often to grave injustice, since in the first place, to value land without taking into account structures standing thereon, where such structures actually existed is almost an impossible task and, secondly, the compulsory omission of existing structures from the computation was bound to lead to the determination of a value which was wholly unreal, particularly in a case where the existing structures could not fit in with improvements resulting from, the execution of the scheme and the land, instead of increasing in value as a result of the improve-ments. really suffered depreciation. On the above line of reasoning, it was contended that by including the property of the appellants in the scheme and by subjecting it to the levy of a betterment fee. arbitrarily imposed, the Constitutional right of the appellants to enjoy the profits of their property had been placed under an unreasonable restriction.
12. Attractive as the argument of the appellants undoubtedly is, I feel bound to hold in the facts of the present case that it is not open to them to raise any question of an invasion of their fundamental right of holding property. It should be remembered that what they are complaining of is the inclusion of their property in the scheme. That inclusion took place and became final under the laws then existing in 1949. when no fundamental rights were in existence. It cannot, therefore, be said that at the time when Section 78-A was applied to the property of the appellants, anything not warranted by law was done or any infringement of any Constitutional right occurred because there existed at that time no Constitutional right at all. As has been held by the Supreme Court, the fundamental rights created by the Constitution are not retrospective in scope or effect. Even when an act is such that, if done now. it would be violative of a Constitutional right, but it was done before the commencement of the Constitution when there was no Constitutional right to be violated a person aggrieved by such act cannot, after the commencement of the Constitution, challenge the act on the ground that it constituted or constitutes an infringement of a right guaranteed to him by the Constitution. Mr. Meyer contended that even Article 256 would not apply, but I cannot agree with him. Article 226 is a provision of a procedural character and its scope is limited to making certain forms of remedy available to the citizens of India not only for the purpose of enforcement of the fundamental rights but also for any other purpose. So far as this Court is concerned, even those remedies are not new, because it had under its Letters Patent, the right to issue all the writs of which Article 226 speaks. I am entirely unable to see why, if a particular wrong, committed prior to the commencement of the Constitution, is brought to the notice of the Court on account of some present result which it is causing. Article 226 cannot.be invoked for appropriate relief or why the remedy provided for by the Article cannot reach back to the point of time when a wrong was committed. I have given my reasons for my view in Messrs Hindusthan Motors Ltd. v. The Union of India, : AIR1954Cal151 (A), which I do not desire to repeat. But although Article 226 may not be inapplicable in the present case, the invocation of fundamental rights is. The appellants, therefore, are not in my view, entitled to contend that the inclusion of their property in the scheme ought to be quashed or that the respondents ought to be directed to refrain from giving effect to the inclusion, because, by such inclusion, their fundamental right of holding property was infringed.
13. I may point out in this connection that Section 78-A of the Calcutta Improvement Act contains two sub-sections. Sub-section (1) provides only 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. By itself, the sub-section goes no further. The quantum of the betterment fee and the method of its computation are laid down in Sub-section (2) and the complaint of the appellants is really against the method of computation which they condemn as arbitrary, unreasonable and unintelligible, No question of computing or levying a betterment fee can, however, arise till the stage indicated by Section 78-B (1). has been reached. Section 78-B (1) provides that when it appears to the Board that an improvement scheme is sufficiently advanced to enable the amount of the betterment fee to be determined, the Board shall declare by a resolution that the scheme shall be deemed to have been completed and shall thereupon proceed to assess the amount of the betterment fee in the manner prescribed in the subsequent sub-sections of the section and several sections following. It will thus appear that, by itself, Sub-section (1) of Section 78-A is perfectly harmless it seems to me also that it is severable from Sub-section (2) and that since the real grievance of the appellants is against that sub-section, they should and will be entitled to raise their objection when proceedings for the assessment of a betterment fee are actually initiated. It may be said that if a piece of land has been included in the area marked out for, the levy of a betterment fee, it has already been subjected to the liability for a levy and what is laid down in Sub-section (2) of Section 78-B is merely procedural. I do not, think that it can be contended that if the inclusion of a piece of land in the area marked out for the levy of a betterment fee stands, no objection to the levy of the fee can subsequently be raised. The only effect of Section 78-A (1) is that a piece of land is declared by the Board as liable to the imposition of a betterment fee on the ground that an increase in value has resulted from the execution of the scheme. That declaration does not dispose of the necessity of making a valid determination of the increase in value or a valid computation of the fee leviable. I am unable to see why a person cannot say that although the Act may havevalidly provided that once the Board is of opinion that a particular piece of land will increase in value as a result of the execution of the scheme, it will be subject to the levy of a betterment fee, it has, nevertheless, failed to make a valid provision for the actual determination or assessment of the fee. If the method prescribed for determining the increase in value and assessing the fee be invalid, as the appellants contend. I cannot see why they should not be able to take their objection at the subsequent stage when a levy is actually sought to be assessed and imposed. If they succeed in establishing that Section 78-A (2) is unconstitutional and therefore invalid, the mere inclusion of the land under Section 78-A (1) will In no way affect their position. In my view, so far as the inclusion of the property in the area marked out for a betterment fee and the operation of Section 78-A (1) are concerned, the appellants cannot raise any question of an invasion of the fundamental right. Their present application is limited to an attack on the inclusion and, therefore, this particular ground must fail. The Constitution has now come into force and if the Board hereafter proceeds under Section 78-B and tries to apply Section 78-A (2), it will be open to the appellants to raise the question of an invasion of their fundamental right at that stage.
14. In dealing with the argument as to the alleged violation of the Constitutional right to hold property, Sinha, J., held that he could not see how by the inclusion of the appellants' land in the area marked out for the levy of a betterment fee, their right to acquire, hold or dispose of their property had been affected. If the learned Judge was thinking merely of the inclusion of the land in the scheme. I would entirely agree with him, but if he was also thinking of the consequent liability of the land to the levy of a betterment fee computed in the manner laid down in Section 78-A (2), I would say. with respect, that the argument of the appellants cannot be disposed of till the true import of Section 78-A (2) is determined. I have already pointed out that the right to hold property includes the right to enjoy the profits thereof. If the method or computation laid down in Section 78-A (2) constitutes an unreasonable restriction on the enjoyment of the profits of properties of the nature of the property of the appellants, it must be held that by the application of the sub-section to their property a fundamental right of theirs will be affected. Whether or not Section 78-4 (2) constitutes an unreasonable restriction remains to be determined. I have already pointed out that it is severable from Sub-rule (1) and that the proper time for challenging it belongs to a later stage, at least in the case of persons who had no fundamental right to defend at the stage of Section 78-A (1) and, in whose case an invasion of a fundamental right occurs at the stage of Section 78-A (2), if that sub-section at all constitutes an unreasonable restriction of the fundamental right to hold property in all or in particular cases. In his judgment in Sm. Burji Kumar Gouti v. Board of Trustees for the Improvement of Calcutta. Matter No. 167 of 1952, D/- 2-4-1954 (Cal) (E). to which he referred in his judgment in the present case, Sinha, J., quoted certain observations of a commentator on the Bombay Town Planning Act of 1915. That Act contains a provision similar to Sectiom 78-A (2), though not wholly similar and he seems to have expressed the view that although the subject-matter of valuation must be taken to be merely the land, minus the buildings, still it will be legitimate and indeed necessary, in determining the value of the land, to take into account the existence upon it of structures, where structures exist. If it be possible to take into account the existence of the structures, even in carrying out the method of computation laid down in Section 78-A (2), the provision will clearly not be an unreasonable one and the appellants, as they told us. would not think of questioning it at all. But whether or not. Section 78-A (2) would admit of taking; into account the existence of structures in determining the value of the land, although it was the value of only the land that is to be determined, is a matter which will have to be decided when a Question under Section 78-A (2) directly arises and if the validity of the section is then challenged.
15. Apart from raising the Constitutional question the appellants urged before us two points drawn from the Act itself. They pointed out that 'land' as defined by Section 2(g) of the Act, had the same meaning as in Section 3(a) of the Land Acquisition Act. The definition in Section 3(a) , of the latter Act is that 'land' includes inter alia things attached to the earth. 'Land', as denned in the Calcutta Improvement Act, would, therefore, include buildings standing on the land it was contended that in order that the Board might properly come to be of the opinion under Section 78-A (1) of the Act that a particular piece of land would increase in value as a result of the execution of the projected scheme, they must take into consideration not merely the land as such, but also the structures thereon because the latter are included in the definition of 'land'. That, it was said, was exactly what had been overlooked by the Board in the Present case. The affidavits filed on the Board's behalf, it was pointed out, merely said that 'the land in the area comprised in the scheme including the premises in question' would increase in value or. as it was put otherwise, 'the petitioners' land included in the scheme would be improved in value on account of the operation of the scheme.' The structures, it was contended, had been altogether forgotten and, therefore, the Board having come to its purported opinion upon the consideration of the land alone, whereas they were required to consider both the land and the structures standing therein had not come to such opinion as was contemplated by Section 78-A (1). Their decision to include the land of the appellants in the scheme was therefore, bad under the terms of Section 78-A (1) itself.
16. I am altogether unable to accept -that contention. It is true that the definition of 'land' is as contended for by the appellants, but like all definition clauses, Section 2 of the Act begins With the words 'unless there is anything repugnant in the subject or context.' There can be no doubt what soever that the land in the contemplation of Section 78-A (1) is the same land as in the contemplation of Section 78-A (2). The land contemplated by the latter section is, under the express terms of' it, the bare land without the structures. The inter-relation between the two sub-sections of the section cannot possibly be disregarded and if it cannot be. it must be held that the context in which the word 'land' is used in Section 78-A (1) makes it impossible to take it in the sense of land including structures.
17. It was next contended that as a matter of fact and on their own showing, the Board had never come to be of opinion that by the execution of the scheme the land would be increased in value, because all that the present Chairman of the Board had said in para. 14 of his affidavit was as follows:--
' .... . .in the opinion of the Respondent Board the land in the area comprised in the said Improvement Scheme No. LVIII, including the said premises No. 55-A, Raja Raj Ballav Street, is likely to and or would, by the making of the said improvement Scheme be increased in value.'
The contention was that the only opinion formed by the Board was that the land was likely to be increased in value and not that it would increase in value. It is true that the expression 'would be increased' had also been used, but that was as an alternative to the expression 'likely to' and if the two are read together, it would be clear that the Board was undecided as to whether the increase in value was merely a possibility or whether it was a certainty. If, it was said, the opinion of the Board did not proceed beyond regarding the increase in value as a possibility, they had not come to be of opinion as Section 78-A (1) required that the land 'would be' increased in value and, therefore, the condition precedent laid down' in the section itself to the inclusion of the land in the scheme had not been satisfied.
18. It appears to me that there was a curious confusion of thought on the part of all concerned in respect of this particular contention of the appellants. Their petition made no reference to this point at all and indeed it was almost solely concerned with trying to make out that the land concerned had not in fact increased in value, as wrongly decided by the Board. In the affidavit-in-opposition to that petition, the present Chairman of the Board came to make the statement . which I have already read. That statement was at once saized upon by the appellants and in para. 5 of his affidavit, affirmed on the 20th of August 1954, one of them, Harendra Kumar Banerjee, said that the admission in the Chairman's affidavit to the effect that in the opinion of the Board the land in the area comprised in the said Scheme, including the premises in question, was 'likely to and/or would by the making of the said Scheme be increased in value' clearly indicated that the Board was not definite as to the factum of the increase in the value of the property in question. A great deal of controversy seems to have ensued and the learned Judge very properly directed that the Board must file an affidavit, disclosing what had actually happened at the time the scheme was framed and the property of the appellants was included in the scheme. But some comment was made on the Chairman's averment in Paragraph 14 of his affidavit and it was said that he would not possibly affirm as true to his knowledge, 'which he had done, what the opinion of the Board was in 1948 and 1949. No one, however, seems to have noticed that the statement in paragraph 14 in the Chairman's affidavit was in the present tense and that it could only be read as the present opinion of the Board as at present constituted, which the Chairman could certainly affirm as true to 'his knowledge'. It might be useful to recall, however, that at the time when the scheme was framed and up to the time it was finalised, the Chairman of the Board was first Mr. Holland and thereafter Mr. s. N. Ray. The present Chairman of the Board Mr. S. K. Gupta came to occupy the office at a much later date and. therefore, he could not possibly speak from personal knowledge to what had happened long before his time. In my view, affidavits of the present members of the Board, who were not members at the time the scheme was framed, are altogether irrelevant to the question as to whether the Board did or did not come to an opinion that the property of the appellants would increase in value upon execution of the scheme. If any officers who had been in employment at the relevant time were still in employment & had personal knowledge of the framing of the scheme, they could perhaps properly affirm affidavits, but, strictly speaking, the matter was to be proved by records of contemporary proceedings. That fortunately was ultimately directed. But if affidavits were to be relied on at all, it may be pointed out that, in the same affidavit, the present Chairman of the Board also referred to what opinion had been. formed by the Board at the time of the framing of the scheme and that was in an earlier paragraph, namely, paragraph 10. There he said that 'the reason why the property was brought within the scheme 'was' that the Board was of opinion that the petitioners' land included in the Scheme would be improved in value on account of the operation of Scheme No. LVIII.. 'It will be noticed that the statement made in paragraph 10 was quite definite as to what opinion had been formed by the Board and that opinion was that the land 'would be improved in value'. No infirmity caused by the introduction of any likelihood affected that statement; though I must add that the affirmation of that statement as well as true to the deponent's knowledge was inaccurate. But para. 10 was overlooked by all and attention was concentrated on Paragraph 14. In my view, the controversy raged over the statement in paragraph 14 of the affidavit affirmed by the present Chairman was altogether misconceived.
19. As I have said, the records of the proceedings, had at the relevant time were ultimately placed before the Court at the direction of the learned Judge. I have already reviewed the subsequent steps taken by the Board and the manner in which the matter proceeded from stage to stage. If the appellants wished to succeed on the point that the Board had not formed the opinion required of them, the onus lay on them to satisfy the Court by producing proper materials that such had been the case. I am entirely unable to hold that the burden was discharged. On the other hand, one finds, so far as can be seen from the proceedings, that the most careful thought was given to-every aspect of the scheme. At the very inception, after the initial proposal by the chief Valuer & the Chief Engineer had been submitted, the Board decided to hold a local inspection. After the inspection had been held, they directed the framing of a scheme and gave fairly elaborate directions as to matters which the scheme was to include. Thereafter, they called for an estimate. The estimate-and the plan prepared for the scheme were also considered at a subsequent meeting and the scheme was directed to be published. The scheme from the beginning showed the area which had been marked out for the levy of a betterment fee. The area of the land and the amount expected to be recovered were also shown. There is no ground whatsoever for thinking that the Board did not. apply their mind to the betterment fee area and that thev approved of the scheme blindly. After the publication of the scheme, objections were called for and not only were written objections considered, but a committee was appointed to hear oral submissions. Certain modifications of the scheme were thereafter made and the scheme, as modified, was again considered. In my view, the evidence of proper consideration is, on the materials on the record, all one way and there is not even the slenderest foundation for the contention of the appellants that the Board had not come to the opinion on which they had purported to act.
20. In the result, it seems to me that while the appellants may have a real grievance if they are compelled to pay a betterment fee in respect of a property which, they say, has actually depricated in value in consequence of the execution of the scheme, it is not possible to give them any relief in the present proceedings. Had the inclusion of the property in the betterment fee area of the scheme taken place after the commencement of the Constitution, they would have a locus standi to contend that even by the inclusion of the property in the betterment fee area, their fundamental right to hold and enjoy the fruits of their property had been exposed to an undue and unreasonable restriction and therefore prejudicially affected. They would have a locus standi to raise the contention because fundamental right had already come into existence, but it does not follow that the contention, raised in that form, would necessarily succeed. If an owner of property derives advantages of an economic value from improvements effected by the State or a statutory body in the surroundings of the property, he can no more complain of an unreasonable levy, if he is made to pay for he advantages, than can the inhabitants of an area to which the benefits of a municipality are extended, if they are made to pay a municipal tax. But whether or not the property is really deriving advantages of an economic value may be a question. The Calcutta Imporvement Act leaves the matter to the opinion of the Board, but whether despite that provision, the matter is justiciable or even if justiciable, whether it will be gone into on an application under Article 226 may have to be considered, if the point is raised by a citizen who can launch his attack from the bastion of fundamental rights. The appellants before us cannot do so, because before the fundamental rights came into existence the inclusion of their property in the betterment fee area was already an accomplished fact. They can, however, yet challenge the actual imposition of the fee on the ground that they have now acquired the fundamental rights in common with all other citizens and the nature of the fee and the method Of its computation is such that its lew would constitute an unreasonable restriction on their exercise and enjoyment of their rights of property. I do not think it can be said that because they cannot challenge the application of Section. 78A(1) to their property on constitutional grounds, they are equally debarred from challenging the application of Section 78A(2), because the two sub-sections are, in my opinion, severable. Although they are not entitled to contend that their fundamental right to hold property has been affected by the inclusion of the property in the betterment fee area, they are nevertheless entitled to contend that the provision relating to the assessment and levy of the fee itself is an invalid provision and therefore in spite of the inclusion of the property in the betterment fee area having become final, no fee can be imposed or levied. They can raise that contention, because, by the levy, their fundamental right will be affected for the first time' if their contention be correct. But the time for that contention is not yet. The respondents themselves pointed out that the stage of an assessment and levy of the fee as laid down in S. 78B, had not yet arrived and therefore the application of the appellants was premature. That contention appears to me to be correct. But, at the same time, if the appellants wish to contend that the direction contained in Section 78A(2) of the Act to compute the increase of value by reference to the land alone without taking into account any structures standing on it, lays down a standard which Is so unreal as to be unreasonable or that, at least in cases where the existing structures are downgraded instead of being upgraded as the result of the execution of the scheme, the direction to compute a betterment fee for what is really a deterioration, is paradoxical and manifestly unfair, it will Be open to them to do so at the appropriate time.
They cannot raise that point in the present proceedings and their grounds drawn from the Act itself' having failed, they cannot be given any relief.
21. It remains to refer to another matter. This appeal was heard on the 21st of March and the 2nd and 3rd of April, 1957, when judgment was i reserved. It is reported to us by Mr. Mallick,.who appears for the appellants, that after the hearing had been concluded and judgment had been, reserved appellant No. 1, Nando Kumar Banerjee, had died. In view of the provisions of Order 22, rule & of the Code of Civil Procedure, that death can have no effect on the appeal which has not abated or been otherwise affected.
22. For the reasons given earlier, all the grounds sought to be urged by the appellants fail. The appeal is, accordingly, dismissed, but there will be no order for costs.
Das Gupta, J.
23. I agree.