TMI Blog1965 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent'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 appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 comprised in the scheme, it has clearly been shown that the laid in question is comprised in the said scheme. In 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 schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of England Vol. 36, p. 394, para 593) . 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 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, [1866] 1 Eng Ir A.C. 34. In that case a contrast was drawn between the special powers conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Trustees for the Improvement of Calcutta 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 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 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 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 excepti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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