TRUSTEES FOR THE IMPROVEMENT OF CALCUTTA v. CHANDRA SEKHAR MALLICK & ORS.
Citation: [1978] 1 S.C.R. 136; 1977 INSC 144
Court: Supreme Court of India
Bench: M. HAMEEDULLAH BEG , Y.V. CHANDRACHUD, P.N. BHAGWATI, V.R. KRISHNA IYER, N.L. UNTWALIA, S. MURTAZA FAZAL ALI, P.S. KAILASAM
Judgment date:
Case summary
1977 INSC 144. Supreme Court of India judgment dated 1977-05-06. TRUSTEES FOR THE IMPROVEMENT OF CALCUTTA v. CHANDRA SEKHAR MALLICK & ORS. Read the judgment...
Judgment text
138 SUPREME COURT REPORTS [1978] 1 S. C. R. TRUSTEES FOR THE IMPROVEMENT OF CALCUTTA v. CHANDRA SEKHAR MALLICK & ORS. r May 6, 1977 [M. H. BEG, C. J. , Y. V. CHANDRACHUD, P. N. BHAGWATI, V. R. KRISHNA IYER, N. L. UNTWALIA, S. MURTAZA FAZAL ALI AND P. S. KAILASAM, JJ. ] Calcutta llnprovement Act, 1911-Sec. 78A to 78G-Whether unconstitu-tional-If suffers from the vice of excessive delegation-RuJes 11 to 21, if 1' ultra vires the A ct. The respondents were the owners of buildings situated in a street known as Fire Lane in the city of Calcutta. The Board of Trustees for the Jmprovement of Calcutta in exercise of the power conferred under s. 39(c) passed the necessary resolution and proceeeded to frame a street scheme for the area which included Fire Lane as also the buildings belonging to the respondent'i. The notice containing the requisite particulars was pub! ished by the Board.
The respondents submitted their objections but the Board after bearing the respondents rejected the objections and applied to the State Government for sanction under s. 47. Ultimately, the State Government granted sanction under s. 48. The Board was of the opinion that as a result of the making of the street scheme, lands of the respondents which were comprised in the street scheme would increase in value. The scheme, therefore, contained a declaration that a betterment fee shall be payable by the respondents in respect of the increases in the value of their respective lands. The Board gave a notice of the proposed assessment of the betterment fee under s. 78B (1} and then proceeded under s. (2) of that section to assess the betterment fee payable by the respondent. The respondents dissented from the assessment made on them and the matter was thereupon referred for determination by arbitrators as contemplated under section 78(B)(4), and an award was made.
The respondents filed writ petitions challenging the validity of the award made by the arbitrators. Section 39 provides that whenever the Board is of the opinion that for the purpose, inter alia, of creating new or improving existing means of communication and facilities for traffic, it is expedient to lay out new streets 'or to alter existin~ street, the Board may pass a resolution to that effect and then proceed to frame street scheme for such area as it may think fit. Section 43 requires the Board to give a notice mentioning where the map of the area and a statement of the land which is proposed to be acquired may be inspected. The said notice is to be published for general public under s. 45. Individual notice is to be served on every person whose name appears in Municipal Assessment Book as being primarily liable to pay the owner's share of the consolidated rate. Under s. 45(2), a person dissenting from the recovery of betterment fee has to state his reasons. Under s.
47 the Board after hearing all persons making dissent may either abandon the scheme or accept it with such modifications and thereafter submit it to the State Gover11. ment containing reasons given for the dissent. The Board is reqnired to publish notice of the fact that a particular ~cheme has been submitted to the Government for its sanction. The State Government may then refuse to sanction the: scheme or sanction it with or without any modifications. The ;rincipal ground on which the validity of the Award of the Arbitrators was impugned in the writ petitioners was that section 78A to section 78G of the Act were ultra vires and void and that R. ulcs 11 to 21 of the Rules were also invalid. The High Court upheld the challenge and -;truck down section 78B to s. 78G and Rule! 11 to 21, as invalid. Allowing the appeal, HELD (I) The view taken by the High Court on the validity o! section 78A to 78G is clearly erroneous.
The High Court thought that the sections suffer from the vice of excessive delegation of legislative power because for determining what land should bear the burden of betterment fee, arbitrary and uncontrolled power hM been given to the Trust and its Engine section 78G were not in the Act as originally enacted but they were introduced in the Act by the Calcutta Improvement (Amendment) Act, 1931. These sections contain a fasciculus of provisions relating to betterment fee, where, by the making of any improvement scheme, any land in the area comprised in the scheme which is not required for the execution thereof, is increased in value. Chapter III of the Act deals with improvement schemes and section 35-D provides that an improvement scheme may be of one of four types, namely, a general improvement scheme, a street scheme, a housing accommoda-tion scheme and a re-housing scheme.
We are concerned in th es appeals with a Street Scheme and hence we shall refer only to those provisions which relate to a street scheme. Section 39 provides that whenever the Board is of opinion that for the purpose inter alia of creating new or improving existing, means of communication andl facilities for traffic, it is expedient to lay out new streets or to alter existing streets, the Board may pass a resolution to that effect and 11hall then proceed to frame a street scheme for such area as may think fit. When any street scheme has been framed, . section 43, sub~ section ( 1 J requires that the Board shall prepare a notice stating the fact that the scheme has been framed, the boundries of the area comprised in the scheme and the place at wh;ch the particulars of the 11cheme, a map of the area comprised in the scheme and a stateme nt of the land which is proposed to be acquired and the land in regard to whicf.
it is proposed to recover a betterment fee may be seen at reasonable hours. Sub-section (2) of section 43 provides for publi-cation of this notice with a stntement of the period within which objections may be received. The Board is also required by section 45, sub-section ( 1) to serve a notice on every person whose name appears 1 in the Municipal assessment book as being primarily liable to oav tne owner's share of the consolidated rate or the ra te on the annual value ol. holdings, in respect of any land in regard to which the Board prn-poses to recover a betterment fee. Sub-section (2) of section 45 provides that such notice shall require such person if he dissent" frnm the recovery of betterment fee, to state his reasons in writing within a period of sixty days.
Section 47, sub-section (1) then provides that the Bo:ird shall consider any statement of dissent received under sec-l0-722SCI/77 tion 45, sub -section (2) and after hearing all persons making su : dissent who may desire to be heard, the Board may either abandon the scheme or apply to the State Government for sanction to the scheme with such mod1ficat10n, if any, as the Board may consider necessary. When the Board applies for sanct. on of the scheme to the State Government, the Board is required under sub-section (2) of section 47 to send inter alia a list of the names of all persons who have dissented under section 45 from the proposed recovery o4. ' the bettenuent fee and a stacement of the reasons given for such dissent. Sub -section (3) of section 47 provides that when any application has been submitted to the State Government for sanction, the Board shall cause notice of the fact to be published for two consecutive weeks in the official Gazette and in the local newspapers.
The State Government may then under section 48 either sanction the scheme with or without modification or refuse to sanction the same. It will be seen from these pw-. isions that a detailed and elaborate machinery is pr , one ca te-t gory, bei ng of lands which are necessary to be acquued for the purpose of execution of the street scheme and the other being t category of lands which are not required for the execution of the street scheme but which would increase in value as a result of the making of the street scheme. Since the latter category of land would increase in value an <e where the constitutionality of ! \11 Act, rule, bye-law or . even a small noti-fication is challenged.
Processual pragmatism in the light of actual experience of the working of this Court, will easily convince any one that, in the context of the current docket explosion and long pendencv of cases, the insistence on this inconvenient plurality which requires more than half the full strength of the Court to sit to hear such ~. is a decisive step in the ne~ative direction. Many questions of constitutional importance have already been covered by the rulings of this Court so that he who runs and reads may resolve them. To require seven judces to perform such jobs is surely supererogatory. Tho present ~ppeal itself. is a ~triking illustration. Where really imoort~nt issues anse for consideration, any bench of this Court would certainly refer, where necessary, such matters for consideration or reconsideration by a large bench-less or more than seven, according to the requirement I A of the situation. To prescribe arithmetically is to petrify unimagina-tively.
We do not say anything about the validity of Article 144A one way or the other but merely highlight the paralysing impact on the highest court and the Jong-term cause of justice, flowing from the numerical rigidity newly inserted by the Forty Second Constitution Amendment Act. We hope and trust that this matter will receive ur-gent attention of Parliament. B We accordingly allow the appeals and dismiss the writ petitions of the respondents. The respondents will pay the costs of the appellant thronghout. \' P. H. P. Appeals allowed. I l
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