{"id":14326,"date":"1977-05-06T00:00:00","date_gmt":"1977-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/trustees-for-the-improvement-of-vs-chandra-sekhar-mallick-ors-on-6-may-1977"},"modified":"2018-04-23T00:21:13","modified_gmt":"2018-04-22T18:51:13","slug":"trustees-for-the-improvement-of-vs-chandra-sekhar-mallick-ors-on-6-may-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/trustees-for-the-improvement-of-vs-chandra-sekhar-mallick-ors-on-6-may-1977","title":{"rendered":"Trustees For The Improvement Of … vs Chandra Sekhar Mallick & Ors on 6 May, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Trustees For The Improvement Of … vs Chandra Sekhar Mallick & Ors on 6 May, 1977<\/div>\n
Equivalent citations: 1977 AIR 2034, \t\t 1978 SCR (1) 136<\/div>\n
Author: P Bhagwati<\/div>\n
Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Bhagwati, P.N., Krishnaiyer, V.R. & Untwalia, N.L., Fazalali, S.M. & Kailasam, P.S.<\/div>\n
           PETITIONER:\nTRUSTEES FOR THE IMPROVEMENT OF CALCUTTA\n\n\tVs.\n\nRESPONDENT:\nCHANDRA SEKHAR MALLICK & ORS.\n\nDATE OF JUDGMENT06\/05\/1977\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nBEG, M. HAMEEDULLAH (CJ)\nCHANDRACHUD, Y.V.\nKRISHNAIYER, V.R.\nUNTWALIA, N.L.\nFAZALALI, SYED MURTAZA\nKAILASAM, P.S.\n\nCITATION:\n 1977 AIR 2034\t\t  1978 SCR  (1) 136\n 1977 SCC  (3) 448\n\n\nACT:\nCalcutta  Improvement  Act,  1911-Sec.\t78A  to\t 78G-Whether\nunconstitutional-If  suffers  from  the\t vice  of  excessive\ndelegation-Rules 11 to 21, it ultra vires the Act.\n\n\n\nHEADNOTE:\nThe  respondents were the owners of buildings situated in  a\nstreet\tknown  as Fire Lane in the city\t of  Calcutta.\t The\nBoard  of  Trustees  for  the  Improvement  of\tCalcutta  in\nexercise  of the power conferred under s. 39(c)\t passed\t the\nnecessary resolution and proceeded to frame a street  scheme\nfor the area which included Fire Lane as also the  buildings\nbelonging  to  the respondents.\t The notice  containing\t the\nrequisite  particulars\twas  published by  the\tBoard.\t The\nrespondents  submitted their objections but the Board  after\nhearing the respondents rejected the objections and  applied\nto   the  State\t Government  for  sanction  under   s.\t 47.\nUltimately,  the State Government granted sanction under  s.\n48.   The Board was of the opinion that as a result  of\t the\nmaking of the street scheme, lands of the respondents  which\nwere comprised in the street scheme would increase in value.\nThe  scheme,  therefore,  contained  a\tdeclaration  that  a\nbetterment  fee\t shall\tbe payable  by\tthe  respondents  in\nrespect\t of the increases in the value of  their  respective\nlands.\t The Board gave a notice of the proposed  assessment\nof  the\t betterment fee under s. 78B(1) and  then  proceeded\nunder  s. (2) of that section to assess the  betterment\t fee\npayable\t by the respondent.  The respondents dissented\tfrom\nthe  assessment\t made on them and the matter  was  thereupon\nreferred  for determination by arbitrators  as\tcontemplated\nunder  section\t78(B)(4),  and\tan  award  was\tmade.\t The\nrespondents filed writ petitions challenging the validity of\nthe award made by the arbitrators.  Section 39 provides that\nwhenever  the Board is of the opinion that for the  purpose,\ninter  alia, of creating new or improving existing means  of\ncommunication and facilities for traffic, it is expedient to\nlay  out new streets or to alter existing street, the  Board\nmay  pass  a resolution to that effect and then\t proceed  to\nframe  a  street scheme for such area as it may\t think\tfit.\nSection\t 43 requires the Board to give a  notice  mentioning\nwhere the map of the area and a statement of the land  which\nis  proposed  to  be acquired may be  inspected.   The\tsaid\nnotice\tis to be published for general public under  s.\t 45.\nIndividual notice is to be served on every person whose name\nappears\t in  Municipal Assessment Book\tas  being  primarily\nliable\tto pay the owner's share of the\t consolidated  rate.\nUnder  s.  45(2), a person dissenting from the\trecovery  of\nbetterment  fee has to state his reasons.  Under s.  47\t the\nBoard  after hearing all persons making dissent\t may  either\nabandon the scheme or accept it with such modifications\t and\nthereafter  submit  it to the  State  Government  containing\nreasons\t given\tfor the dissent.  The Board is\trequired  to\npublish notice of the fact that a particular scheme has been\nsubmitted  to  the Government for its sanction.\t  The  State\nGovernment  may\t then  refuse  to  sanction  the  scheme  or\nsanction   it  with  or\t without  any  modifications.\t The\nprincipal  ground on which the validity of the Award of\t the\nArbitrators  was impugned in the writ petitioners  was\tthat\nsection\t 78A to section 78G of the Act were ultra vires\t and\nvoid and that Rules 11 to 21 of the Rules were also invalid.\nThe High Court upheld the challenge and struck down  section\n78B to s. 786 and Rules 11 to 21, as invalid.\nAllowing the appeal,\nHELD (1) The view taken by the High Court on the validity of\nsection\t 78A  to 78G is clearly erroneous.  The\t High  Court\nthought that the sections suffer from the vice of  excessive\ndelegation of legislative power because for determining what\nland should bear the burden of betterment fee, arbitrary and\n,uncontrolled  power  has been given to the  Trust  and\t its\nEngineers either\n137\ninclude or not to include within the scheme lands which\t are\nrequired  for the execution thereof.  The reasoning  of\t the\nHigh  Court  is\t clearly  based\t on  an\t erroneous  premise.\nSection 39 lays down the factors which would guide the Board\nin deciding which area should be included in the scheme.  It\nis  only when the Board finds that for carrying out  any  of\nthe four purposes set out in section 39, it is expedient  to\nlay  out  new street or to alter existing  street  that\t the\nBoard can proceed to frame a Scheme.  Again the decision  of\nthe  Board is not final.  It is subject to the\tsanction  of\nthe  State Government.\tEven after the scheme is  sanctioned\nby the State Government it is open to the owner of the\tland\nto show that in fact the land would not increase in value by\nreason of the making of the scheme.  The Board has to decide\nobjectively  whether there is any increase in the  value  of\nthe  land at all and if there is, assess the betterment\t fee\non  that  basis.  If the assessee does not  agree  with\t the\nbetterment  fees assessed, he is entitled to dissent and  to\nhave  a\t hearing.   Even  thereafter if\t the  owner  is\t not\nsatisfied  by  the decision of the Board he  can  have\tthis\nquestion determined by a body of two independent arbitrators\nwho would objectively decide the question.  Therefore, there\nis no voice of excessive delegation. [142 C-H, 143 A-D]\n(2)Rule\t 11  provides  the  machinery  for  appointment\t  of\narbitrators  in a case where the objectors fail to elect  an\narbitrator.    Rules  12  to  21  lay  down  the   procedure\nregulating  the proceedings of arbitrator.  These Rules\t are\nclearly\t covered by clause 3(a) of s. 137.  The\t High  Court\ncompletely erred in observing that the Rules are ultra vires\nthe Act. [141 C, 142 B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appear Nos. 579-580  of
\n1976.\n<\/p>\n
(From the judgment and order dated 1-12-1972 of the Calcutta
\nHigh Court in Civil Rule Nos. 41 1 0 and 4111 \/64)
\nP.K.  Chatterjee, G. S. Chatterjee and D. P. Mukherjee,\t for
\nthe appellant.\n<\/p>\n
P.K.  Mukherjee, for respondents in CA No. 579\/76 and  RR  1\n<\/p>\n
(a) to 1 (1), 3 and 4 in CA No. 580\/76.\n<\/p>\n
The Judgment of the Court was delivered by
\nBHAGWANTI,  J.,\t These appeals by certificate  are  directed
\nagainst a judgment of a Division Bench of the Calcutta\tHigh
\nCourt  striking\t down section 78-B to section  78-G  of\t the
\nCalcutta  Improvement Act, 1911 as invalid on the ground  of
\nexcessive   delegation\t of  legislative   power   as\talso
\ncontravention\tof  Article  14\t of  the  Constitution\t and
\ndeclaring  rules  11  to  21 of\t the  Rules  framed  by\t the
\nGovernment  under sub-section (3a) of section 137  as  ultra
\nvires  the provisions of the Act.  The facts giving rise  to
\nthe appeals lie in a very narrow compass and may be  briefly
\nstated as follows.\n<\/p>\n
The  respondents  in Civil Appeal No,. 579 of 1976  are\t the
\nowners\tof  a  building\t bearing No.  35  situate  at  Lower
\nCircular  Road,\t Calcutta  while the  respondents  in  Civil
\nAppeal No. 580 of 1976 are owners of a building bearing\t No.
\n1 \/A situate in Mcleod Street, Calcutta.  There was a street
\nknows as Fire Lane connecting the Lower Circular Road on the
\ncast  to  Mcleod Street on the West.  In or  about  November
\n1954. the Board of Trustees for the Improvement of  Calcutta
\n(hereinafter referred to as the Board) acting in exercise of
\nthe power conferred under section 39, clause (c), passed the
\nnecessary resolution and proceeded to frame a Street  Scheme
\nfor the area which included Fire Lane as also the  buildings
\nbelonging  to ‘the respondents.\t The notice  containing\t the
\nrequisite  particulars\twas published by the Board  on\t24th
\nNovember,
\n138<\/span>
\n 1954 as required by section 43.  The respondents  submitted
\ntheir objections against the Street Scheme on 7th  December,
\n1954 but tile Board, after nearing the respondents, rejected
\nthe  objections\t and  applied to the  State  Government\t for
\nsanction  under\t section  47  and  the\tStreet\tScheme\t was
\nultimately sanctioned by the State Government under  section
\n48  on\t17th December, 1956.  The board was of\tthe  opinion
\nthat  as a result of the making of the Street Scheme,  lands
\nof the respondents which were comprised in the Street Scheme
\nwould  increase in value, and the Street Scheme,  therefore,
\ncontained  a  declaration  that a betterment  fee  shall  be
\npayable by the respondents in respect of the increase in the
\nvalue of their respective lands resulting from the execution
\nof the Street Scheme.  The Board gave notice of the proposed
\nassessment  of the betterment fee to the  respondents  under
\nsub-section  (1) of section 7 8-B and then  proceeded  under
\nsubsection (2) of that section to assess the betterment\t fee
\npayable by the respondents.  The betterment fee was assessed
\nat  Rs.\t 2,15,441\/- in the case of the Lower  Circular\tRoad
\nproperty  and  at Rs. 4,241\/- in the case of  Mcleod  Street
\nproperty  and  notice of this assessment was  given  to\t the
\nrespondents.   The respondents in each case  dissented\tfrom
\nthe  assessment\t made on them and the matter  was  thereupon
\nreferred  for determination by arbitrators  as\tcontemplated
\nunder sub-section (4) of section 78-B.\tThe arbitrators were
\nappointed according to the procedure set out in section\t 78C
\nand  after hearing the parties, the arbitrators\t made  their
\naward on 23rd September, 1964 determining the betterment fee
\npayable\t in the case of Lower Circular Road property at\t Rs.
\n1,25,000\/- and in the case of Mcleod Street property at\t Rs.
\n4,241\/-.  The respondents thereupon filed a writ petition in
\neach case challenging the validity of the award made by\t the
\narbitrators.\n<\/p>\n
The  principal ground on which the validity of the award  of
\nthe arbitrators was impugned in the writ petitions was\tthat
\nsection\t 78A to section 78G of the Act were ultra vires\t and
\nvoid  and  rules 1 1 to 21 of the Rules were  also  invalid.
\nThere  were also certain other subsidiary grounds  taken  in
\nthe  writ  petitions but they have not formed  the  subject-
\nmatter\tof debate before us and hence we need not  refer  to
\nthem.\tThough the writ petitions were filed as far back  as
\n1964   immediately  after  making  of  the  Award   by\t the
\nArbitrators,  they  unfortunately could\t not  reach  hearing
\nbefore\tthe  High Court until July 1971 and then  also,\t the
\nhearing took considerable time and it concluded only on 17th
\nAugust,,  1971.. It appears that during the bearing  of\t the
\nwrit  petitions,  it was brought to the notice of  the\tHigh
\nCourt that the question as to the constitutional validity of
\nsection\t 78A  of the Act was also raised  in  another  case,
\nnamely,\t Civil\tRules  No. 2156 of 1969 and  that  case\t bad
\nalready\t been  heard by another Division Bench of  the\tHigh
\nCourt  and  was\t pending  for  judgment.   The\tHigh  Court,
\ntherefore, decided to bold back the preparation of the judg-
\nment in the writ petitions and to await the judgment of\t the
\nother Division Bench in Civil Rule No. 2156 of 1969.  We. do
\nnot  know when the judgment was delivered in Civil Rule\t No.
\n2156  of 1969 but it appears that the Division\tBench  which
\nbeard  that case did not pronounce upon\t the  constitutional
\nvalidity of section 78A and disposed of that case on  other
\ngrounds.  The result was that the High Court
\n139<\/span>
\nhad  to\t decide the question of constitutional\tvalidity  of
\nsection 78A to section 78G in the present writ petitions and
\nit  proceeded to deliver its judgment in 1st December,\t1972
\nstriking down section 78-B to section 78G and rules 11 to 21
\nas invalid.  We are constrained to observe that the judgment
\nto the High Court visibly bears marks of superficiality\t and
\nlack  of  proper consideration which are inevitable  When  a
\njudgment  is delivered. fifteen months after the  conclusion
\nof  the\t arguments.   The correctness of  this\tjudgment  is
\nimpugned  in the present appeals preferred by  the  trustees
\nfor the Improvement of Calcutta after obtaining\t certificate
\nfrom the High Court.\n<\/p>\n
We have gone through the judgment of the High Court with the
\ndue care and attention which every judgment of a High  Court
\ndemands\t of us but despite our utmost anxiety and effort  we
\nhave not been able to appreciate the reasoning which led the
\nHigh  Court to strike down section 78-B to section  786\t and
\nrules 1 1 to 21 as invalid.  Section 78A to section 78G were
\nnot  in\t the  Act  as  originally  enacted  but\t they\twere
\nintroduced  in the Act by the Calcutta\tImprovement  (Amend-
\nment)  Act,  1931.  These sections contain a  fasciculus  of
\nprovisions relating to betterment fee, where, by the  making
\nof any improvement scheme, any land in the area comprised in
\nthe scheme which is not required for the execution  thereof,
\nis  increased  in value.  Chapter In of the Act\t deals\twith
\nimprovement  schemes  and  section  35-D  provides  that  an
\nimprovement  scheme may be of one of four types,  namely,  a
\ngeneral\t improvement  scheme,  a street\t scheme,  a  housing
\naccommodation  scheme  and  a  re-housing  scheme.   We\t are
\nconcerned in these appeals with a Street Scheme and hence we
\nshall  refer  only  to those provisions which  relate  to  a
\nstreet scheme.\tSection 39 provides that whenever the  Board
\nis  of opinion that for the purpose inter alia\tof  creating
\nnew  or\t unproving  existing,  means  of  communication\t and
\nfacilities  for\t traffic,  it is expedient to  lay  out\t new
\nstreets or to alter, existing streets, the Board may pass  a
\nresolution to that effect and shall then proceed to frame  a
\nstreet\tscheme\tfor such area as may think  fit.   When\t any
\nstreet\tscheme has been framed, section 43,  subsection\t (1)
\nrequires  that the Board shall prepare a notice stating\t the
\nfact that the scheme has been framed, the boundaries of\t the
\narea  comprised\t in the scheme and the place  at  which\t the
\nparticulars  of the scheme, a map of the area  comprised  in
\nthe scheme and a statement of the land which is proposed  to
\nbe  acquired and the land in regard to which it is  proposed
\nto recover a betterment fee may be seen at reasonable hours.
\nSub-section  (2) of section 43 provide-, for publication  of
\nthis  notice  with a statement of the  period  within  which
\nobjections  may be received.  The Board is also required  by
\nsection 45, subsection (1) to serve a notice on every person
\nwhose name appears in the Municipal assessment book as being
\nprimarily liable to pay the owners share of the consolidated
\nrate or the rate on the annual value of holdings, in respect
\nof  any\t land  in regard to which the  Board  pro  poses  to
\nrecover\t a  betterment fee.  Sub-section (2) of\t section  45
\nprovides  that such notice shall require such person  if  he
\ndissents  from the recovery of betterment fee, to state\t his
\nreasons\t in writing within a period of sixty days.   Section
\n47,  sub-section  (1)  then provides that  the\tBonrd  shall
\nconsider any statement of dissent received under sec-
\n10-722SCI\/77
\n140<\/span>
\ntion  45,  sub-section\t(2) and after  hearing\tall  persons
\nmaking suc-dissent who may desire to be heard, the Board may
\neither\tabandon the scheme or apply to the State  Government
\nfor  sanction to the scheme with such modification, if\tany,
\nas the Board may consider necessary.  When the Board applies
\nfor  sanction  of the scheme to the  State  Government,\t the
\nBoard  is  required under sub-section (2) of section  47  to
\nsend inter alia a list of the names of all persons who\thave
\ndissented under section 45 from the proposed recovery of the
\nbetterment fee and a statement of the reasons given for such
\ndissent.   Sub-section (3) of section 47 provides that\twhen
\nany  application has been submitted to the State  Government
\nfor sanction, the Board shall cause notice of the fact to be
\npublished for two consecutive weeks in the official  Gazette
\nand in the local newspapers.  The State Government may\tthen
\nunder section 48 either sanction the scheme with or  without
\nmodification or refuse to sanction the same.
\nIt  will be seen from these provisions that a  detailed\t and
\nelaborate  machinery is provided by the Legislature for\t the
\npurpose of framing a street scheme.  When a street scheme is
\nframed,\t the  area  comprised in  the  street  scheme  would
\ninclude\t lands\tof two categories, one\tcategory,  being  of
\nlandswhich.  are  necessary  to\t be  acquired  for  the
\npurpose of execution of\t the street scheme and\t\t the
\nother being category of landswhich are not required for the
\nexecution  of the street scheme but which would increase  in
\nvalue as a result of the making of the street scheme.  Since
\nthe latter category of land would increase in value and\t the
\nowners of such lands would be benefited by the making of the
\nstreet\tscheme, section 78A empowers the Board,\t in  framing
\nthe street scheme, to declare that a betterment fee shall be
\npayable\t by  the  owners of such lands “in  respect  of\t the
\nincrease  in  the  value  of the  land\tresulting  from\t the
\nexecution of the schemes”.  What shall be the quantum of the
\nbetterment  fee is laid down in sub-section (2)\t of  section
\n78A which says that it shall be “an amount equal to one-half
\nof the increase in the value of the land resulting from\t the
\nexecution  of  the scheme’ to be calculated  in\t the  manner
\nthere  provided.   Section 78-B provides for  assessment  of
\nbetterment  fee by the Board after giving an opportunity  to
\nthe  person  concerned\tto  be\tbeard  and  if\tsuch  person
\ndissent,; from the assessment made by the Board, the  matter
\nis  required  to  be determined by the\tarbitrators  in\t the
\nmanner\tprovided by section 78C.  That section lays down  in
\nmeticulous   detail   the  machinery   for   selection\t and
\nappointment  of\t arbitrators and the making of an  award  by
\nthem determining the amount of betterment fee.\tThe fees  to
\nbe paid to the arbitrators arc provided in section 78-D\t and
\nsection 78E declares that the proceedings of the arbitrators
\nshall  be governed by rules to be made in this behalf  under
\nsection\t 137, provided that every party to such\t proceedings
\nshall be entitled to appear before the arbitrators either in
\nperson\tor by his authorised agent.  Section  78F  provider,
\nfor  giving of notice by the Board to persons liable to\t pay
\nthe   betterment  fee  determined  by  the  Board   or\t the
\narbitrators,  as  the  case may be, and\t section  78G  Takes
\nprovision in regard to payment of betterment fee.  The ques-
\ntion is whether sections 78A to 78G are ultra vires and void
\nas  suffering  from  the vice of  excessive  delegation\t of.
\nlegislative  power,  or contravention of Article 14  of\t the
\nConstitution.\n<\/p>\n
141<\/span><\/p>\n
We will first examine  the validity of rules 11 to 21. These
\nrules  form part of the Rules made by the  State  Government
\nclaiming  to  act in exercise of the power  conferred  under
\nclause\t(3a)  of  section 137.\tThis  clause  was  added  in
\nsection\t 137  by the Amending Act of 1931 at the  same\ttime
\nwhen  section  78A  to\tsection\t 78G  were  enacted  and  it
\nempowered the State Government to make rules inter alia\t for
\ndetermining the qualifications and disqualifications of, the
\nconditions  and mode of election, selection  or\t appointment
\nof,  an\t arbitrator and for regulating\tthe  proceedings  of
\narbitrators under section 78C.\tThis power was conferred  on
\nthe  State Government in addition to that given to it  under
\nsection 86.  Now, Rule 1 contains definitions, while 2 to 11
\nprovide for the qualifications and disqualifications of an($
\nthe   conditions  and  mode  of\t election,   selection\t and
\nappointment, of arbitrators.  It is indeed difficult to\t see
\nhow  Rule  11  could be struck down by\tthe  High  Court  as
\ninvalid.   It  provides\t the machinary\tfor  appointment  of
\narbitrators  in a case where the objectors fail to elect  an
\narbitrator. That  would fall fairly and\t squarely  within
\nthe terms of clause (3a)of section 137.\t Rules 12 to 21 lay
\ndown the procedure regulating the proceedings of arbitrators
\nand  they are clearly covered by the latter part  of  clause
\n(3a)  of section 137, which speaks of Rules “far  regulating
\nthe proceedings of arbitrators under section 78C”.  With the
\ngreat  respect to the learned judges of the High  Court,  we
\nthink impossible to contend that Rules 11 to 21 are  outside
\nthe  rule making power of the State Government under  clause
\n(3a)  of  section 137.\tThe High Court to have relied  on  a
\npassage from the Calcutta Improvement Trust Manual published
\nunder  the  authority of the State Government  which  states
\nthat “the rules were framed by the Government under  section
\n137  of\t the Calcutta Improvement Act,\t1911  regarding\t the
\nnominations of arbitrators for settlement of betterment\t fee
\nin  the Local Self Government Department  Notification-dated
\n5th May, 1934.\tThat indicates that the rules for regulating
\nthe  proceeding\t of an arbitrator under section 78C are\t not
\nwithin\tthe purview of these rules, Yet Rules 11  to  23  in
\nthe  Rules framed under section 137 cover a field  which  is
\nmuch  beyond  the subject of nomination of  arbitrators\t for
\nsettlement  of\tbetterment  fee” and on the  basis  of\tthis
\nstatement, held that “Rules 11 to 21 are outside the  region
\nof the purpose for which the State Government has  exercised
\nits power under section 137”.  This is indeed strange  logic
\nfor striking down Rules 11 to 21 as ultra vires clause\t(3a)
\nof  section  137.   The validity of these rules\t has  to  be
\njudged by reference to the question as to whether they\tfall
\nwithin,\t the scope of the rule making power conferred  under
\nclause\t(3a)  of section 137 and not on the  basis  of\tsome
\nopinion expressed by the author of the Calcutta\t Improvement
\nTrust  Manual.\t When it is clear beyond doubt\tthat  clause
\n(3a)  of section 137 empowers the State Government  to\tmake
\nrules  for regulating the proceedings of  arbitrators  under
\nsection\t 78C  and Rules 11 to 21 are plainly  rules  falling
\nwithin\tthis category, we fail to see how they can  possibly
\nbe  condemned as outside the rule making power conferred  on
\nthe State Government.  The State Government has deliberately
\nand  avowedly exercised its rule making power  under  clause
\n(3a)  of section 137 and made Rules 11 to 21 for  regulating
\nthe proceedings of arbitrators.\t The High Court has
\n142<\/span>
\nalso  made reference to Section 86 and struck down Rules  11
\nto  21 as invalid on the ground that they do not purport  to
\nhave been made under section 86 under which alone, according
\nto the High Court, rules could be made for carrying out\t the
\npurposes of section 78A to Section 78G.\t But the  reference,
\nto  section 86 seems to be clearly misconceived, since\tthat
\nsection confers power on the State Government to make  rules
\nfor carrying out “the purposes of this Chapter” and  section
\n86  being  in Chapter V, the words “this Chapter”  can\thave
\nreference  only\t to Chapter V and not to  Chapter  IV  which
\ncontains  sections  78A to 78G.\t  Obviously,  therefore,  no
\nrules  could be made under section 86 for carrying  out\t the
\npurposes of section 78A to section 78G.\t The High Court was,
\nin  the circumstances, clearly in error in taking  the\tview
\nthat  Rules 1 1 to 21 were ultra vires the Act.\t This was  a
\nwholly\tindefensible  view  and\t even  the  learned  counsel
\nappearing on behalf of the respondents found it difficult to
\nsupport it.\n<\/p>\n
That takes us to the question of the constitutional validity
\nof  section 78A to section 78G.\t The view taken by the\tHigh
\nCourt  on this point also is difficult to  understand.\t The
\nHigh Court appears to have though that these sections suffer
\nfrom the voice of excessive delegation of legislative  power
\nbecause “for determining what land shall bear the burden  of
\nthat   fee?’  (that  is\t betterment  fee)   “arbitrary\t and
\nuncontrolled  power  has  been given to\t the  Trust  or\t its
\nengineers  either  to include or not to include\t within\t the
\nscheme\tlands  which  are not  required\t for  the  execution
\nthereof”  and “it leaves to the Trust and\/ or its  employees
\nto  determine  arbitrarily what shall be the extent  of\t the
\narea  comprised in the’: Scheme by enabling them to  include
\nin the scheme lands which are not required for execution  of
\nthe scheme.” This reasoning is clearly based on an erroneous
\npremise.   It is not correct to say that it is left  to\t the
\nunfettered  and unregulated discretion of the  Board  and\/or
\nits employees to decide what lands to include in the scheme,
\napart  from those required for the execution of the  scheme.
\nSection 39, to which we have already referred, lays down the
\nfactors\t which would guide the Board in deciding  what\tarea
\nshould be included in the scheme.  It is only when the Board
\nfinds that for carrying out any of the four purposes set out
\nin  section 39, it is expedient to lay out new street or  to
\nalter existing street, that the Board can proceed to frame a
\nscheme\tfor such area as it thinks fit and the selection  of
\nthe  area  by the Board would, therefore, be guided  by\t the
\npurpose\t for which the scheme is to be framed.\tThen  again,
\nthe  decision  of  the Board in regard to the  lands  to  be
\nincluded  in the scheme is not final.  Where, by  reason  of
\nthe making of the scheme, the value of any land included  in
\nthe  scheme has, in the opinion of the Board,  increased  in
\nvalue  and  a betterment fee is, therefore, payable  by\t the
\nowner  of  the\tland, an opportunity is\t given\tto  ‘him  to
\ndissent\t from  the recovery of such betterment\tfee  and  to
\nstate  his reasons why be so dissents and the Board is\tthen
\nrequired  to  give him a hearing and ultimately,  if  proper
\ncase  is  made\tout,  the Board may  modify  the  scheme  by
\nexcluding such land and even if the Board is not inclined to
\nmake  any  such modification, the  State  Government,  while
\ngiving its sanction, may still take into account the dissent
\nmade by the owner of the land and consider the reasons given
\nby him, and if satisfied, exclude such land from the  scheme
\nat the time of giving sanction.\t It will,
\n143<\/span>
\ntherefore,  be seen that not only is guidance given  to\t the
\nBoard  in selecting the lands to be included in the  scheme,
\nbut  there  are\t also safeguards provided  with\t a  view  to
\nensuring  that\tlands are not  arbitrarily  or\tcapriciously
\nincluded in the scheme.\t Even after the scheme is sanctioned
\nby  the\t State Government, it is, open to the owner  of\t the
\nland  to  show that in fact the land would not\tincrease  in
\nvalue by reason of the making of the scheme.  The betterment
\nfee  being  co-related to the increase in the value  of\t the
\nland,  the,  Board assessing the amount\t of  betterment\t fee
\nunder  section\t78-B  would have  to  determine\t objectively
\nwhether\t there is any increase in the value of the land\t and
\nif  so, assess the amount of betterment fee on\tthat  basis.
\nIf  the owner of the land dissents from the assessment\tmade
\nby the Board, he can have the matter referred to arbitrators
\nand  the  arbitrators  would then determine  the  amount  of
\nbetterment fee and while doing so, they would naturally have
\nto  find out whether there is any increase in the  value  of
\nthe land at all and if there is, then what is the quantum of
\nsuch increase.\t    The\t owner\tof  the\t land  is  given  an
\nopportunity under the scheme of\t   section  78A\t to  section
\n78G to have this question determined by a body\t  of\t two
\nindependent  arbitrators  who  would  objectively  determine
\nwhether\t there is any increase in the value of the  land  on
\naccount\t of  the  making of the\t scheme.   These  being\t the
\nrelevant provisions, it is difficult to see how section 78-B
\nto section 78-G could be regarded as suffering from the vice
\nof  excessive delegation of legislative power.\t The  attack
\nagainst\t the  validity\tof these sections on  the  basis  of
\ninfraction of Article 14 of the Constitution must also\tfail
\nsince  the challenge under Article 14 is only another  facet
\nof  the challenge on the ground of excessive  delegation  of
\nlegislative  power.   We are, therefore, of  the  view\tthat
\nsection 78-B to section 78G are valid and the High Court was
\nwrong in striking them down as ultra vires and void.
\nWe  cannot  part  with this case without  making  one  final
\nobservation.\tThe  unarguably\t small\tdimension   of\t the
\nconstitutional question raised here is apparent from what we
\nhave  said.   This  Court has  dual  responsibility  to\t the
\ncountry.   It  has  to decide the cases\t brought  before  it
\njustly\tand satisfactorily and at the same  time,  liquidate
\narrears of pending cases.  Both bear upon the credibility of
\nthe judicial system.  But because of article 144A brought in
\nby  the\t Forty Second Amendment Act, seven  judges  of\tthis
\nCourt\thave   to  sit\tand  hear  every  case\t where\t the
\nconstitutionality  of an Act, rule, bye-law or even a  small
\nnotification  is challenged.  Processual pragmatism  in\t the
\nlight  of  actual experience of the working of\tthis  Court,
\nwill  easily  convince any one that, in the context  of\t the
\ncurrent\t docket\t explosion and long pendency of\t cases,\t the
\ninsistence  on\tthis inconvenient plurality  which  requires
\nmore than half the full strength of the Court to sit to hear
\nsuch  cases,, is a decisive step in the negative  direction.
\nMany  questions\t of constitutional importance  have  already
\nbeen  covered  by the rulings of this Court so that  he\t who
\nruns and reads may resolve them.  To require seven judges to
\nperform\t such  jobs is surely supererogatory.\tThe  present
\nappeal\titself\tis a striking  illustration.   Where  really
\nimportant issues arise for consideration, any bench of\tthis
\nCourt  would certainly refer, where necessary, such  matters
\nfor  consideration or reconsideration by a large  bench-less
\nor more than seven, according to the requirement
\n144<\/span>
\nof the situation.  To prescribe arithmetically is to petrify
\nunimaginatively.  We do not say anything about the  validity
\nof  Article 144A one way or the other but  merely  highlight
\nthe paralysing impact on the highest court and the long-term
\ncause of justice, flowing from the numerical rigidity  newly
\ninserted by the Forty Second Constitution Amendment Act.  We
\nhope  and  trust  that\tthis  matter  will  receive   urgent
\nattention of Parliament.\n<\/p>\n
We  accordingly\t allow\tthe appeals  and  dismiss  the\twrit
\npetitions of the respondents.  The respondents will pay\t the
\ncosts of the appellant throughout.\n<\/p>\n
P.H.P.\t\t\t\t Appeals allowed.\n145<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Trustees For The Improvement Of … vs Chandra Sekhar Mallick & Ors on 6 May, 1977 Equivalent citations: 1977 AIR 2034, 1978 SCR (1) 136 Author: P Bhagwati Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Bhagwati, P.N., Krishnaiyer, V.R. & Untwalia, N.L., Fazalali, S.M. & Kailasam, P.S. PETITIONER: TRUSTEES FOR THE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-14326","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTrustees For The Improvement Of ... vs Chandra Sekhar Mallick & Ors on 6 May, 1977 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/trustees-for-the-improvement-of-vs-chandra-sekhar-mallick-ors-on-6-may-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Trustees For The Improvement Of ... vs Chandra Sekhar Mallick & Ors on 6 May, 1977 - 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