Full Judgment Text
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PETITIONER:
SHEIKH GULFAN AND OTHERS
Vs.
RESPONDENT:
SANAT KUMAR GANGULI
DATE OF JUDGMENT:
15/03/1965
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
RAMASWAMI, V.
CITATION:
1965 AIR 1839 1965 SCR (3) 364
CITATOR INFO :
D 1989 SC1834 (18)
ACT:
Calcutta Thika Tenancy Act (2 of 1949), s. 30(c)-If applies
to land in respect of which betterment fee is levied.
HEADNOTE:
The appellants were thika tenants under the respondent in
respect of the suit land. Under the Calcutta Improvement
Trust Act, 1911, a scheme had been framed for improvement of
an area within which the suit land was situate and the suit
land was shown among the properties, in regard to which
betterment fees were proposed to be levied. The respondent
accepted the betterment fee assessed and levied under s. 78A
of the Act. Thereafter, he filed suits for the ejectment of
the appellants. The suits were dismissed as not
maintainable because of s. 5 of the Calcutta Thika Tenancy
Act, 1949, under which an application for the ejectment of a
thika tenant could be filed only before the Controller under
that Act. On appeal, it was held, that the suits were
governed by the provisions of s. 30(c) of the Thika Tenancy
Act, under which, nothing in the Act applied to any land
which was required for carrying out any of the provisions of
the Improvement Trust Act, and therefore, the appeals were
allowed.
In the appeal to this Court by the tenants on the question
as to whether s. 30(c) applied to the suits;
HELD: Because the land was liable to pay betterment fee
and the fee thus realised served the purpose of s. 122 of
the Improvement Trust Act by swelling the funds of the
Improvement Trust Board and such fund could be utilised by
the Board for the purposes of carrying out the scheme, it
cannot be said that the land itself was required for
carrying out the provisions of the improvement Trust Act.
The requirement of s. 30(c) of the Thika Tenancy Act could
not be said to be satisfied by such an indirect connection
between the land and the general purpose of the Improvement
Trust Act. [378 A-B]
In construing the words of a statute the context in which
the words occur, the object of the statute in which the
provision is included and the policy underlying the statute
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assume relevance and become material. [373 F]
In the instant case, the object of the Thika Tenancy Act to
help thika tenants is writ large in all the material
provisions of the Act In construing s. 30, which provides
for an exception to the applicability of beneficent
legislation, if two constructions are reasonably possible,
the Court would be justified in preferring that construction
which helps to carry out the beneficent purpose of the Act
and does not unduly expand the area or the scope of the
exception, that is, the exception must be strictly
construed. Under the section, it is the land which must be
required and not any fee or charges that may be levied
against it. Further, there must be a direct connection
between the land as such and the requirements of the
provisions of the improvement Trust Act, and not with the
policy of the provisions or the object which they are
intended to achieve. In order that s. 30(c) should be
applicable, the respondent must point
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out a specific provision of the Improvement Trust Act for
the carrying out of which the land as such was required.
Section of that Act would not help the respondent, because,
it would not be possible to hold that for carrying out its
provisions the land was directly required. [376 F, 376 H-377
C, G; 378 H]
Moreover, when s. 78A of the Improvement Trust Act,
expressly says that the land in respect of which betterment
fee can be levied, is, not required for the scheme, the
argument that such a land is, nevertheless, required for
carrying out the provision of s. 78A, cannot be accepted.
[377 H]
Betterment fee is levied against a land, because its value
is increased as a result of the improvement scheme and the
Board is justified in recouping itself by such levy in
respect of the unearned increment in the value of the land,
and, if the landholder pays the fee, he may apply under s.
25 of the Improvement Trust Act for an enhancement of the
rent payable by the tenants; but there is no reason why such
a landlord should get the additional benefit of exemption
from the application of the provisions of the Thika Tenancy
Act. Clauses (a) and (b) of s. 30 of that Act indicate that
it is only lands vested in Government or other special
bodies or authorities that are excepted from the application
of the Act. The words used in cl. (c) do not justify the
conclusion that a private landholder is intended to be
equated with Government or with such other special bodies or
authorities. [378 C, D, F]
Though lands acquired by the Board may be covered by s.
30(b) (iv), on the assumption that the Board is a local
authority, s. 30(c) would not become redundant if it was
held not to apply to the suit land, because, there may still
be some other lands which are not acquired by the Board but
which may. nevertheless, be required for carrying out some
provisions of the Improvement Trust Act, as for example
under ss. 35C and 42 of that Act. Or, the legislature might
have made, by way of abundant caution, a specific provision
in respect of lands which are acquired by the Board as well
as those which would be required for the purpose of carrying
out the provisions of the Improvement Trust Act. [379 D-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 48 to 53 of
1963.
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Appeals from the judgment and decrees dated May 3, 1960, of
the Calcutta High Court in Appeals Nos. 215, 67, 82 & 216 of
1958.
W. S. Barlingay, S. S. Khanduja and Ganpat Rai, for the
appellants (in all the appeals).
G. S. Pathak and D. N. Mukherjee, for the respondent (in
all the appeals).
The Judgment of the Court was delivered by
Gajendragadkar, C.J. The short question which these six ap-
peals raise relates to the construction of section 30(c) of
the Calcutta Thika Tenancy Act, 1949 (W.B. Act No. 11 of
1949) (hereinafter called ’the Act’). This question arises
in this way. The respondent Sanat Kumar Ganguli is the
owner of a plot of land being premises No. 12, Haldar Lane,
in Central Calcutta This plot had been let out in several
lots to the predecessors-in-title of the six appellants.
366
On July 24, 1954, the respondent filed six suits Nos. 2240
to 2245 of 1954 against the six appellants respectively on
the original side of the Calcutta High Court, claiming
decrees for ejectment against them and asking for arrears of
ground rent and Municipal taxes.
The appellants contested the respondent’s claim on the
ground that the lands in suits had been taken by their
predecessors-in-title from the owner as Thika tenants in or
about the year 1900, and they alleged that they were in
occupation of the said plots after having built substantial
structures on them. The appellants further claimed that
they had themselves let out portions of such structures to
their own tenants. On these allegations, a preliminary
objection to the competence of the suits was raised by the
appellants on the ground that under s. 5 of the Act, claim
for ejectment of Thika tenants can be entertained only by
the Controller, and so, the learned Judge on the original
side of the Calcutta High Court had no jurisdiction to
entertain it.
The respondent admitted that the appellants were Thika
tenants and did not dispute that normally, a claim for
ejecting such Thika tenants could be tried only by the
Controller; but he urged that the present suits fell within
the scope of s. 30(c) of the Act and in consequence, the
provisions of s. 5 and indeed., all other relevant
provisions of the Act did not apply to them. That is how
the respondent sought to meet the preliminary objection
raised by the appellants.
In appreciating the nature of the controversy thus raised by
the pleadings, it is necessary to mention some more facts.
On February 9, 1940 a notice was issued by the Chairman of
the Calcutta Improvement Trust under s. 43 of the Calcutta
Improvement Act, 1911 (Bengal Act V of 191 1) as amended up
to 193 1. This Act will hereafter be called ’the Improvement
Act’. This notice shows that a scheme bearing No. 53 had
been framed for the purpose of improvement of Calcutta by a
street scheme in Ward No. 10 of the Calcutta Municipality
for an area the boundaries whereof were described in the
said notice. This notice gave the particulars of the scheme
and was accompanied by a map of the area comprised in the
scheme. It also contained the statement of the land which
it was proposed to acquire as well as land on which
betterment fee was proposed to be levied. These plans were
open for inspection at the office of the Trust at No. 5,
Clive Street, Calcutta. Along with this notice, another
notice was published which gave a list of properties
proposed to be acquired under the scheme and contained a
statement of the land in regard to which betterment fees
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were proposed to be levied. Premises No. 12, Haldar Lane,
were included in the latter category of lands.
In July 1952, proceedings were started for settling the
betterment fee to be levied in respect of premises No. 12,
Haldar Lane, and a letter was addressed by the Chief Valuer
of the Calcutta
367
Improvement Trust to the respondent on November 19, 1952.
This letter shows that the Chief Valuer had not received a
reply from the respondent, though his advocate had accepted
the assessment of betterment fee of Rs. 15,000 in the Land
Committee meeting which had been held on August 7, 1952 and
confirmed by the Board on August 30, 1952. On November 19,
1952, however, the respondent recorded in writing that he
accepted the said assessment.
The respondent’s case before ’he learned trial Judge was
that since betterment fee had been levied by the Board in
respect of the suit premises and had 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
land which is required for carrying out any of the
provisions of the Calcutta Improvement Act, 191 1." That is
how the respondent sought to repel the application of s. 5
of the Act and the exclusive jurisdiction of the Controller
to deal with ejectment proceedings in respect of thika
tenants’ holdings. The learned trial Judge held that the
plots constituting the land in the six respective 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 the conclusion that the suits filed by the
respondent on the original side of the Calcutta High Court
were incompetent and could not be entertained. In the
result, the said suits were ordered to be dismissed with
costs.
The respondent challenged these decrees by preferring six
appeals before a Division Bench of the High Court. The
learned Judges who heard these appeals have delivered
separate, but concurring, judgments and have upheld the
respondent’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 the appellants has been
rejected. Once the preliminary objection was rejected, it
was plain that no other point survived, because the
appellants had no defence to make on the merits of the
respondent’s claim. That is why the appeals were allowed
and decrees, for possession were passed in favour of the
respondent. The claim made by the respondent in respect of
arrears of -round rent and municipal taxes was also allowed.
It is against these decrees that the appellants have 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 Bench was right in holding that s.
30(c) of the Act applied to the present suits. The answer
to this Question depends on a fair construction of the
provision prescribed by s. 30(c).
Before dealing with this question, it is necessary to refer
to the material provisions of the Act. The Act was passed
in 1949 with the object of making better provision relating
to the law of landlord and tenant in respect of thika
tenancies in Calcutta. Section 2(5) in Chapter 1 defines a
"thika tenant" as meaning any person who holds, whether
under a written lease or otherwise, land under another
person, and is or but for a special contract would be liable
368
to pay rent, at a monthly or at any other periodical rate,
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for that land to that another person and has erected or
acquired by purchase or gift any structure on such land for
a residential, manufacturing or business purpose and
includes the successors in interest (if such person. Sub-
clauses (a), (b) and (c) of this definition exclude from its
purview certain other categories of persons, but we are not
concerned with these categories of persons in the present
appeals. It is common ground that the appellants are thika
tenants in respect of the plots in their possession.
Chapter 11 of the Act deals with incidents of thika
tenancies. Broadly stated, the object of the Act is to
afford special protection to the thika tenants and several
provisions have been enacted by the Act to carry out this
object. Section 3 specifies the grounds on which alone a
thika tenant may be evicted. Section 4 prescribes a notice
before ejectment proceedings can be taken 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 the application for ejectment of a thika tenant has
to be made to the Controller in the prescribed manner. The
"controller" is defined by s. 2(2) as meaning an officer
appointed as such by the State Government for an area to
which the Act extends and includes officers of another
category therein described. The remaining provisions of Ch.
11 deal with the procedure which has to be followed by the
Controller in dealing with applications for ejectment of
thika tenants and make other incidental provisions in that
behalf. The policy of the Act to afford protection to the
thika tenants is writ large in all these provisions.
Chapter III contains provisions as to rent of thika
tenancies. Chapter IV deals with appeals and certain
special procedures. Section 27(1), for instance, provides
for appeals to the Chief Judge of the Court of Small Causes
of Calcutta and District Judge respectively under clauses
(a) and (b). Section 27(6) provides that an order made
under sub-s. (4) by the Chief Judge or the District 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 Act shall, subject to the provisions
of sub-s. (5) be final and may be executed by the Controller
in the manner provided in the Code of Civil Procedure for
the execution of decrees. It is thus clear that the Act has
made special provisions for the enforcement of the rights
and liabilities of the thika tenants, has constituted
hierarchy of special authorities to deal with claims made by
landlords against their thika tenants, either in the first
instance or at the appellate stage. The decisions of these
special authorities which become final are assimilated to
decrees passed under the Code of Civil Procedure and can be
executed in the manner prescribed by 0.21 of the Code.
Section 31 provides that restriction or exclusion of the Act
by agreement between a landlord and a thika tenant will be
invalid,
369
and will not affect the rights conferred on the thika
tenants by the provisions of the Act. It is in the light of
these provisions that we have to construe s. 30 of the Act.
Section 30 reads thus:-
"Nothing in this Act shall apply to-
(a) Government lands,
(b) any land vested in or in the possession of-
(i) the State Government,
(ii) a port authority of a major port, or
(iii) a railway administration, or
(iv) a local authority, or
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(c) any land which is required for carrying out any of the
provisions of the Calcutta Improvement Act, 1911."
The perusal of s. 301 clearly shows that the provisions of
the Act are excluded in regard to lands specified in clauses
(a), (b) and (c), so that claims made for ejectment of thika
tenants from these lands will not be governed by the
provisions of the Act and can be made and entertained in
ordinary civil courts of competent jurisdiction. The
question which we have to consider in the present appeals is
whether the land which is the subject-matter of the six
suits is land which is required for carrying out any of the
provisions of the Improvement Act.
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 stood prior to the
amendment of 1955, which would assist us in construing s.
30(c) of the Act. This Act was passed, because it was
thought expedient to make provision for the improvement and
expansion of Calcutta by opening up congested areas, laying
out or altering streets, providing open spaces for purposes
of ventilation or recreation, demolishing or constructing
buildings, acquiring land for the said purposes ,,]Id for
the rehousing of persons of the poorer and working classes
displaced by the execution of improvement schemes, and
otherwise as hereinafter appearing. It was further thought
expedient to constitute a Board of Trustees and invest it
with special powers for carrying out 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 an increase in
value of land resulting from the execution of an improvement
scheme. Chapter III of this Act deals with improvement
schemes and re-housing schemes. Section 36 provides when
general improvement schemes may be framed. It is only where
the conditions specified by clauses (a) & (b) of s. 36 are
satisfied that general schemes can be framed. Under this
section, the Board has to pass
370
a resolution to the effect that the general improvement
scheme should be framed on the ground that the area
comprised in the scheme is an unhealthy area and that it was
necessary to frame a general improvement scheme in respect
of such area. Section 40 deals with matters which have to
be considered while framing improvement schemes. It
provides that when framing an improvement scheme in respect
of any area, regard shall be had to-
(a) the nature and the conditions of
neighboring areas and of Calcutta as a whole-,
(b) the several directions in which the
expansion of Calcutta appears likely to
take place-, and
(c) the likelihood of improvement schemes
being required for other parts of Calcutta.
Section 41 deals with matters which must be
provided for in improvement schemes; it reads
thus:-
"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,
(b) the laying out or re-laying out of the
land in the said area;
(c) such demolition, alteration or
reconstruction of buildings, situated on land
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which it is proposed to acquire in the said
area, as the Board may think necessary;
(d) the construction of any buildings which
the Board may consider it necessary to erect
for any purpose other than sale or hire;
(e) the laying out or alteration of streets
(including bridges, causeways and culverts),
if required; and
(f) the leveling, paving, metalling,
flagging, channelling, sewering and draining
of the said streets, and the provision therein
of water, lighting and other sanitary
conveniences ordinarily provided in a
Municipality."
Section 42 deals with matters which may be
provided for in dealing with improvement
schemes. It is necessary to read this section
as well: -
"Any improvement scheme may provide for-
(a) the acquisition by the Board of any
land, in the area comprised in the scheme
which will, in their opinion, be affected by
the execution of the scheme-,
(b) raising, lowering or leveling any land
in the area comprised in the scheme;
371
(c) the formation or retention of open
spaces-. and
(d) any other matters, consistent with this
Act, which the Board may think fit."
Under s. 47, the Board is required to consider objections,
representations and statements of dissent received under the
relevant provisions of sections 43, 44 and 45; and it
provides that as a consequence of considering the said
objections, representations and statements of dissent, the
Board may either abandon the scheme or apply to the State
Government for sanction to the scheme, with such
modifications, if any, as the Board may consider necessary.
Section 47(2)(e) lays down that every application submitted
under sub-s. (1) shall be accompanied by a list of the names
of all persons, if any, who have dissented, under s. 45,
clause (b), from the proposed acquisition of their land or
from the proposed recovery of a betterment fee, and a
statement of the reasons given for such dissent. The rest
of the Chapter deals with the subsequent stages of the
framing of the improvement schemes to which it is
unnecessary to refer.
Chapter IV deals with acquisition and disposal of land.
Three sections out of this Chapter are relevant for our
purpose. Section 78 deals with the abandonment of
acquisition in consideration of special payment. Section
78(1) is relevant; it reads thus:-
"In any case in which the State Government has
sanctioned the acquisition of land, in any
area comprised in an improvement scheme, which
is not required for the execution of the
scheme, the owner of the land, or any person
having an interest therein, may make an
application to the Board, requesting that the
acquisition of the land should be abandoned in
consideration of the payment by him of a sum
to be fixed by the Board in that behalf."
The other sub-sections of s. 78 lay down a procedure for
dealing with applications made under sub-s. (1). With the
details of these provisions we are not concerned. The only
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point which is relevant for our purpose is that an
application for abandonment can be made in respect of land
which is not required for the execution of the scheme. In
other words, if it appears that the piece of land which is
comprised in the scheme already sanctioned by the Government
is in fact not required for the execution of the scheme, an
application may be made for abandonment of acquisition in
respect of such a land. The basis for making such an
application is that though the land was comprised in the
scheme, it is found that it is not required for the
execution of the scheme,,
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,
any land in the area comprised in the scheme
which is not
B(N)3SCI-11
372
required for the execution thereof will, in
the opinion of the Board, be increased in
value, the Board, in framing the scheme, may
in lieu of providing for the acquisition of
such land, declare that a betterment fee shall
be payable by the owner of the land or any
person having an interest therein in respect
of the increase in value of the land resulting
from the execution of the scheme."
Section 78A(2) provides for the determination and
calculation of the betterment fee.
The last section in this Chapter is s. 81. It confers power
on the Board to dispose of land vested in or acquired by
their under this Act. Section 81(1) lays down that the
Board may retain, or may let on hire, lease, sell, exchange
or 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
Before we part with the Improvement Act, it would be useful
to mention that sections 120 to 126 which occur in Ch. VI
of this Act deal with the accounts of the Board. Section
122 provides for credits to capital account and lays down,
inter alia, that all sums, except interest, received by way
of special payments for betterment fees in pursuance of
sections 78, 78A or 79, shall be credited to the capital
account. Section 123 deals with the question of the
application of the capital account, and it proceeds on the
basis that the moneys credited to the capital account shall
be held by the Board in trust, and by clauses (a) to (h), it
specifies the objects or purposes for which the said amount
can be applied. Section 124 refers to items which have to
be included in the revenue account; and s. 125 requires that
like the moneys credited to the capital account, those
credited to the revenue account must also be held by the
Board in trust, and the same shall be applied for the
purposes specified in clauses (a) to (g) of s. 125(1).
Let us now revert to the question about the construction of
s. 30(c) of the Act. Before answering this question, we
would like to recall the material facts which are not in
dispute. The land if question has been included in the
boundaries of the area comprised in the scheme. After the
Board framed scheme No. 53, it has issued a notice under s.
43(1) of the Improvement Act, and as required by s.
43(7)(b), while mentioning the boundaries of the area com-
prised in the scheme, it has clearly been shown that the
laid in question is comprised in the said scheme. In
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respect of this land, proceedings have been taken under s.
78A of the Improvement Act and betterment fee has been
levied and accepted.
Mr. Pathak for the respondent contends that as soon as it is
shown that the land in question was comprised in the scheme
and in respect of it betterment 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
of the Improvement Act. On the
373
other hand, Dr. Barlinge contends that the land in respect
of which betterment fee has been levied cannot be said to be
required for carrying out any provisions of the Improvement
Act, though it may be that the betterment fee would assist
the Board in discharging its functions under the Improvement
Act. In deciding the merits of these competing claims, it
is necessary to remember that the dispute in the present
proceedings is not between the Board on the one hand and the
landlord or the thika tenant on the other’, the dispute is
between the landlord and the thika tenants, and in the
decision of this dispute, the Board is not interested.
Whatever be the decision of the Court in the present dispute
will not affect the Board in the discharge of its duties and
functions and will have no impact on the scheme as such.
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 very easy, and so, we might
attempt to resolve this problem by considering what our
approach should be in construing the relevant provision.
Normally, the words used in 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 meaning of words does not meet the ends or a fair
and a reasonable construction. Exclusive reliance on the
bare dictionary meaning of words may not necessarily assist
a proper construction of the statutory provision in which
the words occur. Often enough, in interpreting a statutory
provision, it becomes necessary to have regard to the
subject-matter of the statute and the object which it is
intended to achieve. That is why in deciding the true scope
and effect of the relevant words in any statutory provision,
the context in which the words occur, the object of the
statute in which the provision is included, and the policy
underlying the statute assume relevance and become material.
As Halsbury has observed, the words "should be construed in
the light of their context rather than what may be either
strict etymological sense or their popular meaning apart
from that context(1)". This position is not disputed before
us by either party.
There has, however, been a sharp controversy before us on
the question as to what is the context to which recourse
should be had in interpreting section 30(c). Mr. Pathak
contends that in construing s. 30(c) of the Act, the key
words are "required for carrying out any of the provisions
of the Improvement Act", and he has urged that the task of
interpretation of this key clause should he attempted by
having re.-lard to the context, the object and the policy of
the Improvement Act. In interpreting this clause, the court
should ask itself: what is the purpose of the provisions of
the Improvement Act which the land is required to serve,
before s. 30(c) of the Act can be invoked? And in finding
an answer to this question, the court must bear in mind the
historical evolution of the legal
(1) Halabury’s Laws of England Vol. 36, p. 394, para 593.
374
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principles relating to the powers and functions of
Improvement Boards. In this connection Mr. Pathak has
relied on the decision of the House of Lords in R. H.
Galloway v. The Mayor and Commonality of London(1). In that
case a contrast was drawn between the special powers
conferred on persons by Parliament for effecting a
particular purpose, and those conferred on the Mayor and
Commonality of the City of London to make certain public
improvements in the City. It was held that where a company
was authorised to take compulsorily the lands of any person
for a definite object, it would be restrained by injunction
from any attempt to take them for any other object. On the
other hand, where the Mayor and Commonalty of the City of
London had been entrusted with powers to make certain public
improvements in the City, and for that purpose had been
authorised compulsorily to take land, to raise money on the
credit of it, and to sell superfleous land to pay off the
debt, the Act which gave them those powers did not expressly
center on the authorities to acquire more land than was
absolutely necessary to effect the desired improvements;
nevertheless the material provisions of the said Act ought
to be construed favorably to them, and ought to be
interpreted to confer on them the power to take lands "for
the purposes of the Act", even though they may not be abso-
lutely necessary for the improvement scheme as such. In
other words, this decision shows that where the Board is
entrusted with the work of improving the City and is
constituted for that purpose by a statute, its power to
acquire lands for the purpose of the improvement scheme
would include the power to acquire a land which is comprised
in the scheme, though it may not be absolutely necessary for
the scheme as such; and in such a case, it would be compe-
tent to the Board first to acquire the land and then to
dispose of it, thereby putting itself in possession of the
necessary funds to discharge its functions and obligations.
The same principle has been emphasised by the Privy Council
in the Trustees for the Improvement of Calcutta v. Chandra
Kanta Ghosh (2). We have already referred to ss. 41 and 42
of the Improvement Act. Section 41 enumerates matters which
must be provided for in the improvement schemes, whereas s.
42 deals with matters which may be provided for in the
improvement schemes. Section 42(a) lays down that any
improvement scheme may provide for the acquisition by the
Board of any land, in the area comprised in the scheme,
which will, in their opinion, be affected by the execution
of the scheme. The question which arose before the Privy
Council in the case of the Trustees for the Improvement of
Calcutta(1) was whether under s. 42(a), it was competent to
the Board to acquire, for the purpose of recoupment, land
which is not required for the execution of the scheme, but
the trustees are of opinion that the said land would, by
virtue of the scheme, be increased in value. The
(1) [1866] 1 Eng & Ir A.C. 34.
(2) [1919] L.R. 47 I.A. 45.
375
decision of this question depended, inter alia, on the
meaning of the word "affected" used in s. 42(a). The
argument which was urged before the Privy Council was that
in order that land can be acquired by the Board under s.
42(a), it must appear that the land falls in the area
comprised 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 the scheme, it
cannot be said to be affected by the scheme; and so, the
Board may have no power to acquire it avowedly for the
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purpose of securing recoupment money. The Privy Council
rejected this contention and held that the Board was
empowered to acquire land which is comprised in the scheme
and would be competent to sell it and thereby raise funds if
it is satisfied that the value of the land will be enhanced
by virtue of the scheme. "There would appear to be
nothing", said Lord Parmoor speaking for the Board, "either
in the general scheme of the Act or in the special context
which is inconsistent with giving the word "affected" its
ordinary and normal sense; but it was suggested in the
argument on behalf of the respondent that the Act did not
authorise the Board to acquire land unless it was either
physically affected by the execution of the scheme, or
injuriously affected, whether by severance or in some other
manner" (p. 54). In rejecting this argument, Lord Parmoor
observed that "in the opinion of their Lordships, none of
the suggested limitations to the usual and normal meaning of
the word "affected" in s. 42 are admissible, and that there
is no reason, either in the general purpose of the Act or
the special context, that the word should not be construed
in its ordinary sense, and that, as so construed, s. 42
authorises the acquisition 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 its execution".
Section 78 and s. 78A which has been inserted in the
Improvement Act in 19 3 1, in a sense give statutory
recognition to the principle evolved by the Privy Council
while interpreting s. 42 of the Improvement Act.
Basing himself on this aspect of the matter, Mr. Pathak con-
tends that where a land is comprised in the improvement
scheme originally notified and betterment fee is levied
later in respect of it under s. 78A, the Board can be deemed
to have taken two steps,, it may be said that the Board
acquired the land and 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 another
way of bringing the land within the purview of the
improvement scheme and it is, in fact, an alternative way of
acquiring it. If that is so, s. 30(c) which obviously
includes lands acquired for the purposes of the scheme,
cannot be said to exclude land which is not directly
acquired, but is indirectly placed in the same category of
lands, because recovery of the recoupment fee is one way of
acquiring the land. It is on these grounds that Mr. Pathak
has strenuously contended that the key clause in s. 30(c)
should receive a liberal
376
construction and the land in question in the present
proceedings should be held to be required for carrying out
the relevant provisions of the Improvement Act.
On the other hand, Dr. Balinge has emphasised the fact that
the section which we are construing occurs in the Thika
Tenancy Act and it is the context of this Act as well as the
object which it seeks to achieve that are relevant and
material. There is no doubt that the provisions of the Act
are intended to serve the purpose of social justice. The
Legislature realised that the relations between the landlord
and the tenants in respect of holdings let out to thika
tenants under the Act needed to be regulated by statute and
it thought that thika tenants deserved some special
protection. The Act is thus a measure which can be
described as social welfare measure, and so, the argument is
that s. 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 should not be unduly
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narrowed down or restricted. In construing s. 30(e), it
would, therefore, be relevant to remember whether it could
not have been the intention of the Legislature to permit a
private land-holder whose land has not been acquired and
does not form part of the improvement scheme, to claim
immunity from the application of the relevant provisions of
the Act which give protection to the thika tenants; and so,
Dr. Barlinge’s contention is that it would be unreasonable
to introduce a liberal approach in construing the clause
"required for carrying out any of the provisions of the
Improvement Act" as suggested by Mr. Pathak.
In our opinion, while construing s. 30(c) it would be
necessary to bear in mind the context of the Act in which
the section occurs. We have already noticed the broad
features of the Act, -and the object of the Act to help the
thika tenants is writ large in all the material provisions.
In the case of such a statute, if an exception is provided,
the provision prescribing the exception and creating a bar
to the application of the Act to certain cases must, we
think, be strictly construed. Take the other clauses of s.
30: they clearly indicate that it is only lands vested in
Government or other special bodies or authorities that are
excepted from the application of the Act. Prima facie, it
is not easy to assume that a private land]-,older like the
respondent would be within the protection of s. 30, because
there is no consideration in his case. as in the case of
other authorities or bodies covered by clauses (a) and (b)
of s. 30, which would justify the exclusion of the Act to
’his case. That is one aspect of the matter which we cannot
ignore.
That takes us to the crux of the problem: can the land in
question be said to be required for carrying out any of the
provisions of the Improvement Act? It is significant that
it is the land which must be required, and not any fee or
charges that may be levied against it. What s. 30(c) of the
Act seems to require is direct
377
connection between the land as such and the requirements of
the provisions of the Improvement Act. The other ingredient
of s. 30(c) is that the land must be required for carrying
out the provisions of the Improvement Act. In the context,
this second ingredient of the section seems to suggest that
the land must be necessary for carrying out the provisions
as such of the Improvement Act; in other words, we should be
able to say about the land in question that it was necessary
for carrying out a particular provision of the Improvement
Act. The third and the last ingredient of s.30(c) is that
the necessity must be established for carrying out the
provisions of the Improvement Act and not the policy of the
said provisions or the object which they are intended to
achieve. Having regard to these ingredients of s. 30(c), the
question which calls for an answer is it shown that the land
in question is necessary to carry out any specific provision
of the Improvement Act’? It is difficult to answer this
question in favour of the respondent.
It is true that the betterment fee which is levied goes to
constitute an important item in the capital account under s.
122 of the Improvement Act. It is also true that the Board
’has the power to levy betterment fee in order that it
should secure enough funds to carry out its obligations
under the Improvement Act. Such a power has always vested
in the Board and has now been statutorily conferred on it by
s. 78A. Under s. 81, the Board can acquire more land than
is absolutely necessary for the purpose of the scheme as
such, and may later dispose of superfluous land. The
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existence of these powers cannot be disputed. But would it
be consistent with the fair construction of s. 30(c) to hold
that because the land in question can be made liable to pay
betterment fee and the betterment fee thus realised from the
land serves the purpose of s. 122 of the Improvement Act,
the land itself is required for carrying, out the provisions
of s. 122? In order that s. 30(c) should be applicable, the
respondent must point out a specific provision of the
Improvement Act for the carrying out of which the land as
such is required. The provisions of s. 122 of the
Improvement Act do not he help the respondent, because it is
not possible to bold that for carrying out the provisions of
s. 122, the land in question is directly required.
There is another aspect of the question to which we ought to
refer Section 78A, like s. 78, deals with lands which in
terms are not required for the execution of the scheme.
These two sections provide for two categories of lands, both
of which were originally comprised in the scheme, but are
later found to be not required for the scheme. Now, when s.
78A expressly says that the and in respect of which
betterment fee can be levied, is not required for the
scheme, it is not easy to accept the argument that such a
land is nevertheless required for carrying out the
provisions of s. 78A. In construing s. 30(c), it is
necessary to distinguish between the carrying,, out the
provisions of the Improvement Act, and the achieve-
378
ment or the accomplishment of the objects of the said
provisions. In one sense, the land in question does serve
the purpose of the Improvement scheme, because the
betterment fee which is levied on it swells the funds of the
Board and the funds are utilised by the Board for the
purposes of carrying out the scheme; but the requirement of
the land for carrying out the provisions of the Improvement
Act which alone can invoke s. 30(c), cannot be said to be
satisfied by this indirect connection between the land and
the general purpose of the Improvement Act.
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 a result of the
improvement scheme, and so, s. 78A authorises the Board to
levy betterment fee presumably on the ground that the Board
is justified in recouping itself by such levy in respect of
unearned increment in the value of the land of which the
land-holder gets a benefit. If the land-holder pays
betterment fee for such unearned increment in the value of
the land, he may apply under s. 25 of the Act for enhancing
the rent payable by the thika tenants to him. But there
appears to be no reason why a landlord, the value of whose
land has increased by the improvement scheme introduced in
the area in which his land is situated, should get the
additional benefit of exemption from the application of the
provisions of the Act which give protection to the tenants.
Having carefully considered the question of construing
s.30(c), we have come to the conclusion that the words used
in s. 30(c) do not justify the conclusion that a private
landholder is intended to be equated with Government or with
the other special bodies or authorities whose lands are
exempted from the operation of the Act by s. 30. We do not
think that the Legislature intended that the provisions of
the Act should cease to apply to all lands which ore
comprised in the scheme, because such a provision would
appear to be inconsistent with the categories of cases
covered by clauses (a) & (b) of s. 30. Besides, if that was
the intention of the Legislature in enacting s. 30(c), it
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would have been easy for the Legislature to say that lands
comprised in the improvement schemes should be exempted from
the application of the Act. Section 30, as we already
emphasised, provides for an exception to the application of
the beneficent provisions of the Act, and it would, we
think. not be unreasonable to bold that even if s. 30(c) is
reasonably capable of the construction for which Mr. Pathak
contends, we should prefer the alternative construction
which is also reasonably possible. In construing the
provisions which provide for exceptions to the applicability
of beneficent legislation, if two constructions are
reasonably possible, the Court would be justified in
preferring that construction which helps to carry out the
beneficent purpose of the 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
379
reversing the conclusion of the trial Judge that the present
suits filed on the original side of the Calcutta High Court
were incompetent.
There is, however, one more point to which we ought to refer
before we part with these appeals. Both the learned Judges
in the Court of Appeal have observed that if s. 30(c) is
held not to apply to the land in question on the ground that
it is not required for carrying out any of the provisions of
the Improvement Act, s. 30(c) would, in substance, become
redundant. The argument which 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
30(b)(iv) and as such, the land which has vested in the
Board is already excepted from the operation of the Act by
the said provision; and that means that the lands acquired
by the Board under the provisions of the Improvement Act
have already been provided for by s. 30(b)(iv). If that is
so, there would be no cases to which 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 is a local authority within the meaning of s.
30(b)(iv). In dealing with this particular argument,
however, we are prepared to assume that the Board is such a
local authority. Even so, it is possible to hold that s.
30(c) does not become redundant, because though s. 30(b)(iv)
may include lands acquired by the Board, there may still be
some other lands which are not acquired by the Board but
which, nevertheless, may be required for carrying out some
provisions of the Improvement Act. Take, for instance, s.
42 of the Improvement Act. Section 42(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 are made by s. 35C(1)(i)
and (j) as introduced by the Amending Act 32 of 1955. It is
possible to take the view that the lands required for the
purposes specified in these provisions of s. 42 or s. 35C of
the Improvement Act are required within the meaning of s.
30(c) of the Act, though they may not have been acquired.
But apart from this consideration, the argument that s.
30(c) would become redundant cannot, we think, be treated as
decisive, because it is not unknown that the Legislature
sometimes makes provisions out of abundant caution. When s.
30(c) was enacted in 1949, the Legislature may have thought
that in order to avoid any doubt, dispute or difficulty in
regard to the question as to whether the Board would be a
local, authority or not, it would be better to make a
specific provision in respect of lands which are acquired by
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the Board as well as those which would be required for the
purpose of carrying out the provisions of the Improvement
Act. It is true that the lands which are required within
the meaning of s. 30(c) would include lands which are
actually acquired 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
380
authorities or bodies in clause (a) & (b) of s. 30, the
Legislature may have thought that it would be better to
refer to the Improvement Act and lands required for carrying
out its provisions, specifically and expressly. Having
regard to the considerations on which our interpretation of
s. 30(c) is based, we are not prepared to attach undue
significance to the argument based on the assumption that
the Board is a local authority within the meaning of s.
30(b)(iv) and that would make the provisions of s. 30(c)
either superfluous or would deprive the said provision of
any significance or importance.
The result is, the appeals are allowed, the decrees passed
by the Division Bench are set aside and those of the trial
Judge restored with costs throughout.
Appeals allowed.
381