{"id":203099,"date":"1965-03-15T00:00:00","date_gmt":"1965-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sheikh-gulfan-and-others-vs-sanat-kumar-ganguli-on-15-march-1965"},"modified":"2018-08-17T07:13:37","modified_gmt":"2018-08-17T01:43:37","slug":"sheikh-gulfan-and-others-vs-sanat-kumar-ganguli-on-15-march-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sheikh-gulfan-and-others-vs-sanat-kumar-ganguli-on-15-march-1965","title":{"rendered":"Sheikh Gulfan And Others vs Sanat Kumar Ganguli on 15 March, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sheikh Gulfan And Others vs Sanat Kumar Ganguli on 15 March, 1965<\/div>\n
Equivalent citations: 1965 AIR 1839, \t\t 1965 SCR (3) 364<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B. (Cj)<\/div>\n
           PETITIONER:\nSHEIKH GULFAN AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nSANAT KUMAR GANGULI\n\nDATE OF JUDGMENT:\n15\/03\/1965\n\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nBENCH:\nGAJENDRAGADKAR, P.B. (CJ)\nHIDAYATULLAH, M.\nRAMASWAMI, V.\n\nCITATION:\n 1965 AIR 1839\t\t  1965 SCR  (3) 364\n CITATOR INFO :\n D\t    1989 SC1834\t (18)\n\n\nACT:\nCalcutta Thika Tenancy Act (2 of 1949), s. 30(c)-If  applies\nto land in respect of which betterment fee is levied.\n\n\n\nHEADNOTE:\nThe  appellants were thika tenants under the  respondent  in\nrespect\t of the suit land.  Under the  Calcutta\t Improvement\nTrust Act, 1911, a scheme had been framed for improvement of\nan area within which the suit land was situate and the\tsuit\nland  was  shown among the properties, in  regard  to  which\nbetterment fees were proposed to be levied.  The  respondent\naccepted the betterment fee assessed and levied under s. 78A\nof the Act.  Thereafter, he filed suits for the ejectment of\nthe   appellants.    The  suits\t were\tdismissed   as\t not\nmaintainable  because of s. 5 of the Calcutta Thika  Tenancy\nAct, 1949, under which an application for the ejectment of a\nthika tenant could be filed only before the Controller under\nthat  Act.   On\t appeal, it was held, that  the\t suits\twere\ngoverned by the provisions of s. 30(c) of the Thika  Tenancy\nAct,  under  which, nothing in the Act applied to  any\tland\nwhich was required for carrying out any of the provisions of\nthe  Improvement Trust Act, and therefore, the appeals\twere\nallowed.\nIn  the appeal to this Court by the tenants on the  question\nas to whether s. 30(c) applied to the suits;\nHELD:\t  Because the land was liable to pay betterment\t fee\nand  the fee thus realised served the purpose of s.  122  of\nthe  Improvement  Trust\t Act by swelling the  funds  of\t the\nImprovement  Trust Board and such fund could be utilised  by\nthe  Board for the purposes of carrying out the\t scheme,  it\ncannot\tbe  said  that\tthe land  itself  was  required\t for\ncarrying  out the provisions of the improvement\t Trust\tAct.\nThe  requirement of s. 30(c) of the Thika Tenancy Act  could\nnot  be said to be satisfied by such an indirect  connection\nbetween the land and the general purpose of the\t Improvement\nTrust Act. [378 A-B]\nIn  construing the words of a statute the context  in  which\nthe  words  occur, the object of the statute  in  which\t the\nprovision is included and the policy underlying the  statute\nassume relevance and become material. [373 F]\nIn the instant case, the object of the Thika Tenancy Act  to\nhelp  thika  tenants  is  writ large  in  all  the  material\nprovisions  of the Act In construing s. 30,  which  provides\nfor   an  exception  to\t the  applicability  of\t  beneficent\nlegislation,  if two constructions are reasonably  possible,\nthe Court would be justified in preferring that construction\nwhich  helps to carry out the beneficent purpose of the\t Act\nand  does  not unduly expand the area or the  scope  of\t the\nexception,   that  is,\tthe  exception\tmust   be   strictly\nconstrued.  Under the section, it is the land which must  be\nrequired  and  not  any fee or charges that  may  be  levied\nagainst\t it.   Further, there must be  a  direct  connection\nbetween\t the  land  as\tsuch and  the  requirements  of\t the\nprovisions  of the improvement Trust Act, and not  with\t the\npolicy\tof  the\t provisions or the  object  which  they\t are\nintended  to  achieve.\t In order that s.  30(c)  should  be\napplicable, the respondent must point\n365\nout  a specific provision of the Improvement Trust  Act\t for\nthe  carrying  out of which the land as such  was  required.\nSection of that Act would not help the respondent,  because,\nit  would not be possible to hold that for carrying out\t its\nprovisions the land was directly required. [376 F, 376 H-377\nC, G; 378 H]\nMoreover,  when\t s.  78A  of  the  Improvement\tTrust\tAct,\nexpressly says that the land in respect of which  betterment\nfee  can  be levied, is, not required for  the\tscheme,\t the\nargument  that\tsuch a land is, nevertheless,  required\t for\ncarrying  out the provision of s. 78A, cannot  be  accepted.\n[377 H]\nBetterment  fee is levied against a land, because its  value\nis  increased as a result of the improvement scheme and\t the\nBoard  is  justified  in recouping itself by  such  levy  in\nrespect of the unearned increment in the value of the  land,\nand,  if the landholder pays the fee, he may apply under  s.\n25  of the Improvement Trust Act for an enhancement  of\t the\nrent payable by the tenants; but there is no reason why such\na  landlord should get the additional benefit  of  exemption\nfrom the application of the provisions of the Thika  Tenancy\nAct.  Clauses (a) and (b) of s. 30 of that Act indicate that\nit  is\tonly  lands vested in Government  or  other  special\nbodies or authorities that are excepted from the application\nof  the Act.  The words used in cl. (c) do not\tjustify\t the\nconclusion  that  a  private landholder is  intended  to  be\nequated with Government or with such other special bodies or\nauthorities. [378 C, D, F]\nThough\tlands  acquired by the Board may be  covered  by  s.\n30(b)  (iv),  on the assumption that the Board\tis  a  local\nauthority,  s.\t30(c) would not become redundant if  it\t was\nheld not to apply to the suit land, because, there may still\nbe some other lands which are not acquired by the Board\t but\nwhich  may. nevertheless, be required for carrying out\tsome\nprovisions  of\tthe Improvement Trust Act,  as\tfor  example\nunder ss. 35C and 42 of that Act.  Or, the legislature might\nhave made, by way of abundant caution, a specific  provision\nin respect of lands which are acquired by the Board as\twell\nas those which would be required for the purpose of carrying\nout the provisions of the Improvement Trust Act. [379 D-H]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 48 to 53 of
\n1963.\n<\/p>\n
Appeals from the judgment and decrees dated May 3, 1960,  of
\nthe Calcutta High Court in Appeals Nos. 215, 67, 82 & 216 of
\n1958.\n<\/p>\n
W.   S.\t Barlingay, S. S. Khanduja and Ganpat Rai,  for\t the
\nappellants     (in all the appeals).\n<\/p>\n
G.   S.\t Pathak and D. N. Mukherjee, for the respondent\t (in
\nall the\t  appeals).\n<\/p>\n
The Judgment of the Court was delivered by
\nGajendragadkar, C.J. The short question which these six\t ap-
\npeals raise relates to the construction of section 30(c)  of
\nthe  Calcutta  Thika Tenancy Act, 1949 (W.B. Act No.  11  of
\n1949) (hereinafter called ‘the Act’).  This question  arises
\nin  this  way.\tThe respondent Sanat Kumar  Ganguli  is\t the
\nowner of a plot of land being premises No. 12, Haldar  Lane,
\nin  Central Calcutta This plot had been let out\t in  several
\nlots to the predecessors-in-title of the six appellants.\n<\/p>\n
366<\/span><\/p>\n
On  July 24, 1954, the respondent filed six suits Nos.\t2240
\nto  2245 of 1954 against the six appellants respectively  on
\nthe  original  side  of the Calcutta  High  Court,  claiming
\ndecrees for ejectment against them and asking for arrears of
\nground rent and Municipal taxes.\n<\/p>\n
The  appellants\t contested  the respondent’s  claim  on\t the
\nground\tthat  the  lands in suits had been  taken  by  their
\npredecessors-in-title from the owner as Thika tenants in  or
\nabout  the  year 1900, and they alleged that  they  were  in
\noccupation of the said plots after having built\t substantial
\nstructures  on\tthem.  The appellants further  claimed\tthat
\nthey  had themselves let out portions of such structures  to
\ntheir  own  tenants.  On these\tallegations,  a\t preliminary
\nobjection  to the competence of the suits was raised by\t the
\nappellants  on the ground that under s. 5 of the Act,  claim
\nfor  ejectment of Thika tenants can be entertained  only  by
\nthe  Controller, and so, the learned Judge on  the  original
\nside  of  the  Calcutta High Court had\tno  jurisdiction  to
\nentertain it.\n<\/p>\n
The  respondent\t admitted  that the  appellants\t were  Thika
\ntenants\t and  did  not dispute that normally,  a  claim\t for
\nejecting  such\tThika  tenants could be tried  only  by\t the
\nController; but he urged that the present suits fell  within
\nthe  scope  of s. 30(c) of the Act and in  consequence,\t the
\nprovisions   of\t s.  5\tand  indeed.,  all  other   relevant
\nprovisions  of the Act did not apply to them.  That  is\t how
\nthe  respondent\t sought to meet\t the  preliminary  objection
\nraised by the appellants.\n<\/p>\n
In appreciating the nature of the controversy thus raised by
\nthe  pleadings, it is necessary to mention some more  facts.
\nOn  February 9, 1940 a notice was issued by the Chairman  of
\nthe  Calcutta Improvement Trust under s. 43 of the  Calcutta
\nImprovement Act, 1911 (Bengal Act V of 191 1) as amended  up
\nto 193 1. This Act will hereafter be called ‘the Improvement
\nAct’.\tThis notice shows that a scheme bearing No.  53\t had
\nbeen framed for the purpose of improvement of Calcutta by  a
\nstreet\tscheme in Ward No. 10 of the  Calcutta\tMunicipality
\nfor  an\t area the boundaries whereof were described  in\t the
\nsaid notice.  This notice gave the particulars of the scheme
\nand  was accompanied by a map of the area comprised  in\t the
\nscheme.\t  It also contained the statement of the land  which
\nit  was\t proposed  to  acquire as  well\t as  land  on  which
\nbetterment fee was proposed to be levied.  These plans\twere
\nopen  for  inspection at the office of the Trust at  No.  5,
\nClive  Street,\tCalcutta.  Along with this  notice,  another
\nnotice\twas  published\twhich  gave  a\tlist  of  properties
\nproposed  to  be acquired under the scheme and\tcontained  a
\nstatement  of  the land in regard to which  betterment\tfees
\nwere  proposed to be levied.  Premises No. 12, Haldar  Lane,
\nwere included in the latter category of lands.
\nIn  July  1952, proceedings were started  for  settling\t the
\nbetterment  fee to be levied in respect of premises No.\t 12,
\nHaldar Lane, and a letter was addressed by the Chief  Valuer
\nof the Calcutta
\n367<\/span>
\nImprovement  Trust to the respondent on November  19,  1952.
\nThis  letter shows that the Chief Valuer had not received  a
\nreply from the respondent, though his advocate had  accepted
\nthe  assessment of betterment fee of Rs. 15,000 in the\tLand
\nCommittee meeting which had been held on August 7, 1952\t and
\nconfirmed by the Board on August 30, 1952.  On November\t 19,
\n1952,  however, the respondent recorded in writing  that  he
\naccepted the said assessment.\n<\/p>\n
The  respondent’s  case before ‘he learned trial  Judge\t was
\nthat  since betterment fee had been levied by the  Board  in
\nrespect\t of the suit premises and had been accepted by\thim,
\ns.  30(c) of the Act applied to the present suits.   Section
\n30(c)  provides that “nothing in the Act shall apply to\t any
\nland  which  is\t required  for\tcarrying  out  any  of\t the
\nprovisions of the Calcutta Improvement Act, 191 1.” That  is
\nhow  the respondent sought to repel the application of s.  5
\nof the Act and the exclusive jurisdiction of the  Controller
\nto  deal  with\tejectment proceedings in  respect  of  thika
\ntenants’  holdings.  The learned trial Judge held  that\t the
\nplots constituting the land in the six respective suits\t did
\nnot  attract the provisions of s. 30(c) of the Act, and\t so,
\nhe upheld the preliminary objection raised by the appellants
\nand  came  to  the conclusion that the suits  filed  by\t the
\nrespondent  on the original side of the Calcutta High  Court
\nwere  incompetent  and\tcould not be  entertained.   In\t the
\nresult,\t the  said suits were ordered to be  dismissed\twith
\ncosts.\n<\/p>\n
The  respondent challenged these decrees by  preferring\t six
\nappeals\t before\t a Division Bench of the  High\tCourt.\t The
\nlearned\t Judges\t who  heard  these  appeals  have  delivered
\nseparate,  but\tconcurring, judgments and  have\t upheld\t the
\nrespondent’s  argument that the land in suits attracted\t the
\nprovisions of s. 30(c) of the Act, with the result that\t the
\npreliminary  objection\traised by the  appellants  has\tbeen
\nrejected.   Once the preliminary objection was rejected,  it
\nwas  plain  that  no  other  point  survived,  because\t the
\nappellants  had\t no  defence to make on the  merits  of\t the
\nrespondent’s  claim.  That is why the appeals  were  allowed
\nand  decrees,  for possession were passed in favour  of\t the
\nrespondent.  The claim made by the respondent in respect  of
\narrears of -round rent and municipal taxes was also allowed.
\nIt is against these decrees that the appellants have come to
\nthis Court with certificates granted by the High Court;\t and
\nso,  the  only\tquestion which arises for  our\tdecision  is
\nwhether\t the  Division Bench was right in  holding  that  s.
\n30(c)  of the Act applied to the present suits.\t The  answer
\nto  this  Question  depends on a fair  construction  of\t the
\nprovision prescribed by s. 30(c).\n<\/p>\n
Before dealing with this question, it is necessary to  refer
\nto  the material provisions of the Act.\t The Act was  passed
\nin 1949 with the object of making better provision  relating
\nto  the\t law  of landlord and tenant  in  respect  of  thika
\ntenancies in Calcutta.\tSection 2(5) in Chapter 1 defines  a
\n“thika\ttenant”\t as meaning any person\twho  holds,  whether
\nunder  a  written  lease or otherwise,\tland  under  another
\nperson, and is or but for a special contract would be liable
\n368<\/span>
\nto  pay rent, at a monthly or at any other periodical  rate,
\nfor  that  land to that another person and  has\t erected  or
\nacquired by purchase or gift any structure on such land\t for
\na   residential,  manufacturing\t or  business  purpose\t and
\nincludes  the successors in interest (if such person.\tSub-
\nclauses (a), (b) and (c) of this definition exclude from its
\npurview certain other categories of persons, but we are\t not
\nconcerned  with these categories of persons in\tthe  present
\nappeals.  It is common ground that the appellants are  thika
\ntenants in respect of the plots in their possession.
\nChapter\t 11  of\t the  Act  deals  with\tincidents  of  thika
\ntenancies.   Broadly  stated, the object of the\t Act  is  to
\nafford\tspecial protection to the thika tenants and  several
\nprovisions  have been enacted by the Act to carry  out\tthis
\nobject.\t  Section 3 specifies the grounds on which  alone  a
\nthika tenant may be evicted.  Section 4 prescribes a  notice
\nbefore\tejectment proceedings can be taken against  a  thika
\ntenant;\t and  s. 5 provides for proceedings  for  ejectment.
\nThe important feature of the provisions contained in s. 5(1)
\nis that the application for ejectment of a thika tenant\t has
\nto be made to the Controller in the prescribed manner.\t The
\n“controller”  is  defined by s. 2(2) as meaning\t an  officer
\nappointed  as  such by the State Government for an  area  to
\nwhich  the  Act\t extends and includes  officers\t of  another
\ncategory therein described.  The remaining provisions of Ch.
\n11  deal with the procedure which has to be followed by\t the
\nController  in\tdealing with applications for  ejectment  of
\nthika  tenants and make other incidental provisions in\tthat
\nbehalf.\t  The policy of the Act to afford protection to\t the
\nthika tenants is writ large in all these provisions.
\nChapter\t III  contains\tprovisions  as\tto  rent  of   thika
\ntenancies.   Chapter  IV  deals\t with  appeals\tand  certain
\nspecial\t procedures.  Section 27(1), for instance,  provides
\nfor appeals to the Chief Judge of the Court of Small  Causes
\nof  Calcutta and District Judge respectively  under  clauses\n<\/p>\n
(a)  and  (b).\tSection 27(6) provides that  an\t order\tmade
\nunder sub-s. (4) by the Chief Judge or the District Judge or
\na person appointed under sub-s. (2), as the case may be, or,
\nsubject\t to  such  order,  if any,  an\torder  made  by\t the
\nController  under this Act shall, subject to the  provisions
\nof sub-s. (5) be final and may be executed by the Controller
\nin  the manner provided in the Code of Civil  Procedure\t for
\nthe execution of decrees.  It is thus clear that the Act has
\nmade  special provisions for the enforcement of\t the  rights
\nand  liabilities  of  the  thika  tenants,  has\t constituted
\nhierarchy of special authorities to deal with claims made by
\nlandlords  against their thika tenants, either in the  first
\ninstance or at the appellate stage.  The decisions of  these
\nspecial\t authorities which become final are  assimilated  to
\ndecrees passed under the Code of Civil Procedure and can  be
\nexecuted  in  the  manner prescribed by 0.21  of  the  Code.
\nSection 31 provides that restriction or exclusion of the Act
\nby  agreement between a landlord and a thika tenant will  be
\ninvalid,
\n369<\/span>
\nand  will  not\taffect the rights  conferred  on  the  thika
\ntenants by the provisions of the Act.  It is in the light of
\nthese provisions that we have to construe s. 30 of the Act.
\nSection 30 reads thus:-\n<\/p>\n
“Nothing in this Act shall apply to-\n<\/p>\n
(a)  Government lands,\n<\/p>\n
(b)  any land vested in or in the possession of-\n<\/p>\n
(i)  the State Government,\n<\/p>\n
(ii) a port authority of a major port, or\n<\/p>\n
(iii) a railway administration, or\n<\/p>\n
(iv) a local authority, or\n<\/p>\n
(c)  any land which is required for carrying out any of\t the
\nprovisions of the Calcutta Improvement Act, 1911.”
\nThe  perusal of s. 301 clearly shows that the provisions  of
\nthe Act are excluded in regard to lands specified in clauses\n<\/p>\n
(a), (b) and (c), so that claims made for ejectment of thika
\ntenants\t from  these  lands  will not  be  governed  by\t the
\nprovisions  of\tthe Act and can be made and  entertained  in
\nordinary  civil\t courts\t of  competent\tjurisdiction.\t The
\nquestion which we have to consider in the present appeals is
\nwhether\t the  land which is the subject-matter\tof  the\t six
\nsuits is land which is required for carrying out any of\t the
\nprovisions of the Improvement Act.\n<\/p>\n
That takes us to the relevant provisions of the\t Improvement
\nAct itself.  The Improvement Act was passed in 1911 and\t has
\nbeen amended from time to time.\t Let us consider broadly the
\nmaterial provisions of this Act, as they stood prior to\t the
\namendment  of 1955, which would assist us in  construing  s.
\n30(c)  of  the\tAct.  This Act was passed,  because  it\t was
\nthought expedient to make provision for the improvement\t and
\nexpansion of Calcutta by opening up congested areas,  laying
\nout or altering streets, providing open spaces for  purposes
\nof  ventilation or recreation, demolishing  or\tconstructing
\nbuildings,  acquiring land for the said purposes  ,,]Id\t for
\nthe  rehousing of persons of the poorer and working  classes
\ndisplaced  by  the  execution of  improvement  schemes,\t and
\notherwise as hereinafter appearing.  It was further  thought
\nexpedient  to constitute a Board of Trustees and  invest  it
\nwith  special  powers for carrying out the objects  of\tthis
\nAct.   Section 2(1a) of this Act defines a “betterment\tfee”
\nas the fee prescribed by s. 78A in respect of an increase in
\nvalue of land resulting from the execution of an improvement
\nscheme.\t  Chapter  III of this Act  deals  with\t improvement
\nschemes\t and re-housing schemes.  Section 36  provides\twhen
\ngeneral improvement schemes may be framed.  It is only where
\nthe  conditions specified by clauses (a) & (b) of s. 36\t are
\nsatisfied  that general schemes can be framed.\t Under\tthis
\nsection, the Board has to pass
\n370<\/span>
\na  resolution  to the effect that  the\tgeneral\t improvement
\nscheme\tshould\tbe  framed  on\tthe  ground  that  the\tarea
\ncomprised in the scheme is an unhealthy area and that it was
\nnecessary  to frame a general improvement scheme in  respect
\nof  such area.\tSection 40 deals with matters which have  to
\nbe   considered\t while\tframing\t improvement  schemes.\t  It
\nprovides that when framing an improvement scheme in  respect
\nof any area, regard shall be had to-\n<\/p>\n
\t      (a)   the\t  nature  and  the   conditions\t  of
\n\t      neighboring areas and of Calcutta as a whole-,\n<\/p><\/blockquote>\n
\t      (b)   the\t several  directions  in  which\t the
\n\t      expansion\t of Calcutta appears likely to
\n\t      take place-, and\n<\/p><\/blockquote>\n
\t      (c)   the\t likelihood of\timprovement  schemes
\n\t      being required for other parts of Calcutta.
\n\t      Section  41 deals with matters which  must  be
\n\t      provided for in improvement schemes; it  reads
\n\t      thus:-\n<\/p><\/blockquote>\n
\t      “Every improvement scheme shall provide for-\n<\/p><\/blockquote>\n
\t      (a)   the\t acquisition  by the  Board  of\t any
\n\t      land,  in\t the area comprised in\tthe  scheme,
\n\t      which  will, in their opinion be required\t for
\n\t      the execution of the scheme,\n<\/p><\/blockquote>\n
\t      (b)   the\t laying out or re-laying out of\t the
\n\t      land in the said area;\n<\/p><\/blockquote>\n
\t      (c)   such    demolition,\t   alteration\t  or
\n\t      reconstruction of buildings, situated on\tland
\n\t      which  it is proposed to acquire in  the\tsaid
\n\t      area, as the Board may think necessary;\n<\/p><\/blockquote>\n
\t      (d)   the construction of any buildings  which
\n\t      the  Board may consider it necessary to  erect
\n\t      for any purpose other than sale or hire;\n<\/p><\/blockquote>\n
\t      (e)   the laying out or alteration of  streets
\n\t      (including  bridges, causeways and  culverts),
\n\t      if required; and\n<\/p><\/blockquote>\n
\t      (f)   the\t   leveling,   paving,\t  metalling,
\n\t      flagging,\t channelling, sewering and  draining
\n\t      of the said streets, and the provision therein
\n\t      of   water,   lighting  and   other   sanitary
\n\t      conveniences   ordinarily\t  provided   in\t   a
\n\t      Municipality.”\n<\/p><\/blockquote>\n
\t      Section  42  deals with matters which  may  be
\n\t      provided\tfor  in\t dealing  with\t improvement
\n\t      schemes.\tIt is necessary to read this section
\n\t      as well: –\n<\/p><\/blockquote>\n
\t      “Any improvement scheme may provide for-\n<\/p><\/blockquote>\n
\t      (a)   the\t acquisition  by the  Board  of\t any
\n\t      land,  in\t the area comprised  in\t the  scheme
\n\t      which  will, in their opinion, be affected  by
\n\t      the execution of the scheme-,\n<\/p><\/blockquote>\n
\t      (b)   raising,  lowering or leveling any\tland
\n\t      in the area comprised in the scheme;\n<\/p><\/blockquote>\n
\t      371<\/span><\/p>\n
\t      (c)   the\t formation  or\tretention  of\topen
\n\t      spaces-. and\n<\/p><\/blockquote>\n
\t      (d)   any other matters, consistent with\tthis
\n\t      Act, which the Board may think fit.”\n<\/p><\/blockquote>\n
Under  s. 47, the Board is required to consider\t objections,
\nrepresentations and statements of dissent received under the
\nrelevant  provisions  of  sections 43, 44  and\t45;  and  it
\nprovides  that\tas  a consequence of  considering  the\tsaid
\nobjections,  representations and statements of dissent,\t the
\nBoard  may either abandon the scheme or apply to  the  State
\nGovernment   for   sanction  to\t the   scheme,\t with\tsuch
\nmodifications, if any, as the Board may consider  necessary.
\nSection 47(2)(e) lays down that every application  submitted
\nunder sub-s. (1) shall be accompanied by a list of the names
\nof  all\t persons, if any, who have dissented, under  s.\t 45,
\nclause\t(b), from the proposed acquisition of their land  or
\nfrom  the  proposed  recovery of a  betterment\tfee,  and  a
\nstatement  of the reasons given for such dissent.  The\trest
\nof  the\t Chapter  deals with the subsequent  stages  of\t the
\nframing\t  of  the  improvement\tschemes\t to  which   it\t  is
\nunnecessary to refer.\n<\/p>\n
Chapter\t IV  deals with acquisition and\t disposal  of  land.
\nThree  sections\t out of this Chapter are  relevant  for\t our
\npurpose.    Section  78\t deals\twith  the   abandonment\t  of
\nacquisition  in consideration of special  payment.   Section
\n78(1) is relevant; it reads thus:-\n<\/p>\n
\t      “In any case in which the State Government has
\n\t      sanctioned  the  acquisition of land,  in\t any
\n\t      area comprised in an improvement scheme, which
\n\t      is  not  required\t for the  execution  of\t the
\n\t      scheme,  the owner of the land, or any  person
\n\t      having  an  interest  therein,  may  make\t  an
\n\t      application to the Board, requesting that\t the
\n\t      acquisition of the land should be abandoned in
\n\t      consideration  of the payment by him of a\t sum
\n\t      to be fixed by the Board in that behalf.”\n<\/p><\/blockquote>\n
The  other  sub-sections of s. 78 lay down a  procedure\t for
\ndealing\t with applications made under sub-s. (1).  With\t the
\ndetails of these provisions we are not concerned.  The\tonly
\npoint  which  is  relevant  for\t our  purpose  is  that\t  an
\napplication  for abandonment can be made in respect of\tland
\nwhich  is not required for the execution of the scheme.\t  In
\nother  words, if it appears that the piece of land which  is
\ncomprised in the scheme already sanctioned by the Government
\nis in fact not required for the execution of the scheme,  an
\napplication  may be made for abandonment of  acquisition  in
\nrespect\t of  such  a land.  The basis  for  making  such  an
\napplication  is\t that though the land was comprised  in\t the
\nscheme,\t it  is\t found\tthat it\t is  not  required  for\t the
\nexecution of the scheme,,
\nThat  takes  us\t to  s.\t 78A which  has\t a  bearing  on\t the
\nconstruction  of  s. 30(c) of the Act.\t Section  78A(1)  is
\nmaterial for our purpose; it reads thus – –\n<\/p>\n
\t      “When by the making of any improvement scheme,
\n\t      any  land in the area comprised in the  scheme
\n\t      which is not
\n\t      B(N)3SCI-11
\n\t      372<\/span>
\n\t      required\tfor the execution thereof  will,  in
\n\t      the  opinion  of the Board,  be  increased  in
\n\t      value,  the Board, in framing the scheme,\t may
\n\t      in  lieu of providing for the  acquisition  of
\n\t      such land, declare that a betterment fee shall
\n\t      be  payable  by the owner of the land  or\t any
\n\t      person  having an interest therein in  respect
\n\t      of the increase in value of the land resulting
\n\t      from the execution of the scheme.”\n<\/p><\/blockquote>\n
Section\t  78A(2)   provides  for   the\t determination\t and
\ncalculation of the betterment fee.\n<\/p>\n
The last section in this Chapter is s. 81.  It confers power
\non  the\t Board to dispose of land vested in or\tacquired  by
\ntheir  under  this Act.\t Section 81(1) lays  down  that\t the
\nBoard may retain, or may let on hire, lease, sell,  exchange
\nor  otherwise dispose of any land vested in or\tacquired  by
\nthem  under  this Act.\tHow this power can be  exercised  is
\nspecified by sub-sections (2) and (3) of S. 81
\nBefore we part with the Improvement Act, it would be  useful
\nto  mention that sections 120 to 126 which occur in Ch.\t  VI
\nof  this Act deal with the accounts of the  Board.   Section
\n122  provides for credits to capital account and lays  down,
\ninter alia, that all sums, except interest, received by\t way
\nof  special  payments for betterment fees  in  pursuance  of
\nsections  78,  78A or 79, shall be credited to\tthe  capital
\naccount.   Section  123\t deals\twith  the  question  of\t the
\napplication  of the capital account, and it proceeds on\t the
\nbasis that the moneys credited to the capital account  shall
\nbe held by the Board in trust, and by clauses (a) to (h), it
\nspecifies the objects or purposes for which the said  amount
\ncan  be applied.  Section 124 refers to items which have  to
\nbe included in the revenue account; and s. 125 requires that
\nlike  the  moneys  credited to the  capital  account,  those
\ncredited  to  the revenue account must also be held  by\t the
\nBoard  in  trust,  and the same shall  be  applied  for\t the
\npurposes specified in clauses (a) to (g) of s. 125(1).
\nLet us now revert to the question about the construction of
\ns.   30(c)  of the Act.\t Before answering this question,  we
\nwould like to  recall  the material facts which are  not  in
\ndispute.   The\tland if question has been  included  in\t the
\nboundaries  of the area comprised in the scheme.  After\t the
\nBoard framed scheme No. 53, it has issued a notice under  s.
\n43(1)  of  the\tImprovement  Act,  and\tas  required  by  s.
\n43(7)(b),  while mentioning the boundaries of the area\tcom-
\nprised\tin  the scheme, it has clearly been shown  that\t the
\nlaid  in  question  is comprised in  the  said\tscheme.\t  In
\nrespect\t of this land, proceedings have been taken under  s.
\n78A  of\t the  Improvement Act and betterment  fee  has\tbeen
\nlevied and accepted.\n<\/p>\n
Mr. Pathak for the respondent contends that as soon as it is
\nshown that the land in question was comprised in the  scheme
\nand  in\t respect of it betterment fee has  been\t levied\t and
\naccepted, s. 30(c) of the Act is attracted.  His argument is
\nthat such a land is required for carrying out the provisions
\nof the Improvement Act.\t On the
\n373<\/span>
\nother  hand, Dr. Barlinge contends that the land in  respect
\nof which betterment fee has been levied cannot be said to be
\nrequired for carrying out any provisions of the\t Improvement
\nAct,  though it may be that the betterment fee would  assist
\nthe Board in discharging its functions under the Improvement
\nAct.   In deciding the merits of these competing claims,  it
\nis  necessary  to remember that the dispute in\tthe  present
\nproceedings is not between the Board on the one hand and the
\nlandlord  or the thika tenant on the other’, the dispute  is
\nbetween\t the  landlord\tand the thika tenants,\tand  in\t the
\ndecision  of  this  dispute, the Board\tis  not\t interested.
\nWhatever be the decision of the Court in the present dispute
\nwill not affect the Board in the discharge of its duties and
\nfunctions and will have no impact on the scheme as such.
\nThe  words  used  in s. 30(c) of the Act are,  in  a  sense,
\nsimple\tenough; but it must be conceded that the problem  of
\ntheir  construction  is\t not very easy,\t and  so,  we  might
\nattempt\t to  resolve this problem by  considering  what\t our
\napproach  should  be in construing the\trelevant  provision.
\nNormally,  the words used in a statute have to be  construed
\nin  their  ordinary  meaning; but in  many  cases,  judicial
\napproach  finds\t that  the simple  device  of  adopting\t the
\nordinary  meaning of words does not meet the ends or a\tfair
\nand  a reasonable construction.\t Exclusive reliance  on\t the
\nbare dictionary meaning of words may not necessarily  assist
\na  proper construction of the statutory provision  in  which
\nthe words occur.  Often enough, in interpreting a  statutory
\nprovision,  it\tbecomes\t necessary to  have  regard  to\t the
\nsubject-matter\tof  the statute and the object which  it  is
\nintended to achieve.  That is why in deciding the true scope
\nand effect of the relevant words in any statutory provision,
\nthe  context  in which the words occur, the  object  of\t the
\nstatute\t in which the provision is included, and the  policy
\nunderlying the statute assume relevance and become material.
\nAs Halsbury has observed, the words “should be construed  in
\nthe  light of their context rather than what may  be  either
\nstrict\tetymological  sense or their popular  meaning  apart
\nfrom that context(1)”.\tThis position is not disputed before
\nus by either party.\n<\/p>\n
There  has, however, been a sharp controversy before  us  on
\nthe  question  as to what is the context to  which  recourse
\nshould\tbe  had in interpreting section 30(c).\t Mr.  Pathak
\ncontends  that\tin construing s. 30(c) of the Act,  the\t key
\nwords  are “required for carrying out any of the  provisions
\nof  the Improvement Act”, and he has urged that the task  of
\ninterpretation\tof  this key clause should he  attempted  by
\nhaving re.-lard to the context, the object and the policy of
\nthe Improvement Act.  In interpreting this clause, the court
\nshould ask itself: what is the purpose of the provisions  of
\nthe  Improvement  Act which the land is required  to  serve,
\nbefore\ts. 30(c) of the Act can be invoked?  And in  finding
\nan answer to this question, the court must bear in mind\t the
\nhistorical evolution of the legal
\n(1)  Halabury’s Laws of England Vol. 36, p. 394, para 593.\n<\/p>\n
374<\/span><\/p>\n
principles   relating  to  the\tpowers\tand   functions\t  of
\nImprovement  Boards.   In  this connection  Mr.\t Pathak\t has
\nrelied\ton  the\t decision of the House of  Lords  in  R.  H.
\nGalloway v. The Mayor and Commonality of London(1).  In that
\ncase  a\t contrast  was\tdrawn  between\tthe  special  powers
\nconferred   on\tpersons\t by  Parliament\t for   effecting   a
\nparticular  purpose,  and those conferred on the  Mayor\t and
\nCommonality  of\t the City of London to make  certain  public
\nimprovements in the City.  It was held that where a  company
\nwas authorised to take compulsorily the lands of any  person
\nfor a definite object, it would be restrained by  injunction
\nfrom any attempt to take them for any other object.  On\t the
\nother  hand, where the Mayor and Commonalty of the  City  of
\nLondon had been entrusted with powers to make certain public
\nimprovements  in  the City, and for that  purpose  had\tbeen
\nauthorised compulsorily to take land, to raise money on\t the
\ncredit\tof it, and to sell superfleous land to pay  off\t the
\ndebt, the Act which gave them those powers did not expressly
\ncenter\ton  the authorities to acquire more  land  than\t was
\nabsolutely  necessary  to effect the  desired  improvements;
\nnevertheless  the material provisions of the said Act  ought
\nto  be\tconstrued  favorably  to  them,\t and  ought  to\t  be
\ninterpreted  to confer on them the power to take lands\t“for
\nthe purposes of the Act”, even though they may not be  abso-
\nlutely\tnecessary  for the improvement scheme as  such.\t  In
\nother  words,  this decision shows that where the  Board  is
\nentrusted  with\t the  work  of improving  the  City  and  is
\nconstituted  for  that purpose by a statute,  its  power  to
\nacquire\t lands\tfor the purpose of  the\t improvement  scheme
\nwould include the power to acquire a land which is comprised
\nin the scheme, though it may not be absolutely necessary for
\nthe  scheme as such; and in such a case, it would be  compe-
\ntent  to  the Board first to acquire the land  and  then  to
\ndispose\t of it, thereby putting itself in possession of\t the
\nnecessary funds to discharge its functions and obligations.
\nThe same principle has been emphasised by the Privy  Council
\nin  the Trustees for the Improvement of Calcutta v.  Chandra
\nKanta Ghosh (2).  We have already referred to ss. 41 and  42
\nof the Improvement Act.\t Section 41 enumerates matters which
\nmust be provided for in the improvement schemes, whereas  s.
\n42  deals  with\t matters which may be provided\tfor  in\t the
\nimprovement  schemes.\tSection\t 42(a) lays  down  that\t any
\nimprovement  scheme may provide for the acquisition  by\t the
\nBoard  of  any land, in the area comprised  in\tthe  scheme,
\nwhich  will, in their opinion, be affected by the  execution
\nof  the scheme.\t The question which arose before  the  Privy
\nCouncil\t in the case of the Trustees for the Improvement  of
\nCalcutta(1) was whether under s. 42(a), it was competent  to
\nthe  Board to acquire, for the purpose of  recoupment,\tland
\nwhich  is not required for the execution of the scheme,\t but
\nthe  trustees  are of opinion that the said land  would,  by
\nvirtue of the scheme, be increased in value.  The
\n(1)  [1866] 1 Eng & Ir A.C. 34.\n<\/p>\n
(2) [1919] L.R. 47 I.A. 45.\n<\/p>\n
375<\/span><\/p>\n
decision  of  this  question depended, inter  alia,  on\t the
\nmeaning\t of  the  word “affected” used\tin  s.\t42(a).\t The
\nargument  which was urged before the Privy Council was\tthat
\nin  order  that land can be acquired by the Board  under  s.
\n42(a),\tit  must  appear that the land\tfalls  in  the\tarea
\ncomprised  in  the  scheme  and would  be  affected  by\t the
\nexecution of the scheme.  If the land does not become a part
\nof  the\t scheme itself but remains outside  the\t scheme,  it
\ncannot\tbe  said to be affected by the scheme; and  so,\t the
\nBoard  may  have  no power to acquire it  avowedly  for\t the
\npurpose\t of  securing recoupment money.\t The  Privy  Council
\nrejected  this\tcontention  and\t held  that  the  Board\t was
\nempowered  to acquire land which is comprised in the  scheme
\nand would be competent to sell it and thereby raise funds if
\nit is satisfied that the value of the land will be  enhanced
\nby  virtue  of\tthe  scheme.   “There  would  appear  to  be
\nnothing”, said Lord Parmoor speaking for the Board,  “either
\nin  the general scheme of the Act or in the special  context
\nwhich  is inconsistent with giving the word  “affected”\t its
\nordinary  and  normal  sense; but it was  suggested  in\t the
\nargument  on behalf of the respondent that the Act  did\t not
\nauthorise  the\tBoard to acquire land unless it\t was  either
\nphysically  affected  by  the execution of  the\t scheme,  or
\ninjuriously affected, whether by severance or in some  other
\nmanner”\t (p. 54).  In rejecting this argument, Lord  Parmoor
\nobserved  that “in the opinion of their Lordships,  none  of
\nthe suggested limitations to the usual and normal meaning of
\nthe word “affected” in s. 42 are admissible, and that  there
\nis  no reason, either in the general purpose of the  Act  or
\nthe  special context, that the word should not be  construed
\nin  its\t ordinary sense, and that, as so  construed,  s.  42
\nauthorises  the acquisition of the land of  the\t respondent,
\nwhich was inserted in the scheme, because in the opinion  of
\nthe Board, it would be enhanced in value by its\t execution”.
\nSection\t 78  and  s.  78A which has  been  inserted  in\t the
\nImprovement  Act  in  19  3 1, in  a  sense  give  statutory
\nrecognition  to the principle evolved by the  Privy  Council
\nwhile interpreting s. 42 of the Improvement Act.
\nBasing himself on this aspect of the matter, Mr. Pathak con-
\ntends  that  where a land is comprised\tin  the\t improvement
\nscheme\toriginally  notified and betterment  fee  is  levied
\nlater in respect of it under s. 78A, the Board can be deemed
\nto  have  taken two steps,, it may be said  that  the  Board
\nacquired  the  land and later, sold it to the owner  on\t the
\nterms and conditions authorised by s. 78A.  In other  words,
\nthe  argument is that the levy of betterment fee is  another
\nway  of\t bringing  the\tland  within  the  purview  of\t the
\nimprovement scheme and it is, in fact, an alternative way of
\nacquiring  it.\t If  that is so, s.  30(c)  which  obviously
\nincludes  lands\t acquired for the purposes  of\tthe  scheme,
\ncannot\tbe  said  to  exclude land  which  is  not  directly
\nacquired,  but is indirectly placed in the same category  of
\nlands, because recovery of the recoupment fee is one way  of
\nacquiring the land.  It is on these grounds that Mr.  Pathak
\nhas  strenuously contended that the key clause in  s.  30(c)
\nshould receive a liberal
\n376<\/span>
\nconstruction  and  the\tland  in  question  in\tthe  present
\nproceedings  should be held to be required for carrying\t out
\nthe relevant provisions of the Improvement Act.
\nOn the other hand, Dr. Balinge has emphasised the fact\tthat
\nthe  section  which we are construing occurs  in  the  Thika
\nTenancy Act and it is the context of this Act as well as the
\nobject\twhich  it  seeks to achieve that  are  relevant\t and
\nmaterial.  There is no doubt that the provisions of the\t Act
\nare  intended to serve the purpose of social  justice.\t The
\nLegislature realised that the relations between the landlord
\nand  the  tenants in respect of holdings let  out  to  thika
\ntenants under the Act needed to be regulated by statute\t and
\nit   thought  that  thika  tenants  deserved  some   special
\nprotection.   The  Act\tis  thus  a  measure  which  can  be
\ndescribed as social welfare measure, and so, the argument is
\nthat  s. 30 which provides for an exception to the  material
\nprovisions of the Act, should be strictly construed, so that
\nthe  beneficent\t purpose  of the Act should  not  be  unduly
\nnarrowed  down\tor restricted.\tIn construing s.  30(e),  it
\nwould,\ttherefore, be relevant to remember whether it  could
\nnot  have been the intention of the Legislature to permit  a
\nprivate\t land-holder  whose land has not been  acquired\t and
\ndoes  not  form\t part of the improvement  scheme,  to  claim
\nimmunity from the application of the relevant provisions  of
\nthe Act which give protection to the thika tenants; and\t so,
\nDr.  Barlinge’s contention is that it would be\tunreasonable
\nto  introduce  a liberal approach in construing\t the  clause
\n“required  for\tcarrying out any of the\t provisions  of\t the
\nImprovement Act” as suggested by Mr. Pathak.
\nIn  our\t opinion,  while construing s.\t30(c)  it  would  be
\nnecessary  to bear in mind the context of the Act  in  which
\nthe  section  occurs.\tWe have already\t noticed  the  broad
\nfeatures of the Act, -and the object of the Act to help\t the
\nthika tenants is writ large in all the material\t provisions.
\nIn the case of such a statute, if an exception is  provided,
\nthe  provision prescribing the exception and creating a\t bar
\nto  the\t application of the Act to certain  cases  must,  we
\nthink, be strictly construed.  Take the other clauses of  s.
\n30:  they clearly indicate that it is only lands  vested  in
\nGovernment  or other special bodies or authorities that\t are
\nexcepted  from the application of the Act.  Prima facie,  it
\nis  not easy to assume that a private land]-,older like\t the
\nrespondent would be within the protection of s. 30,  because
\nthere  is  no consideration in his case. as in the  case  of
\nother  authorities or bodies covered by clauses (a) and\t (b)
\nof  s. 30, which would justify the exclusion of the  Act  to
\n‘his case.  That is one aspect of the matter which we cannot
\nignore.\n<\/p>\n
That  takes us to the crux of the problem: can the  land  in
\nquestion be said to be required for carrying out any of\t the
\nprovisions  of the Improvement Act?  It is significant\tthat
\nit  is the land which must be required, and not any  fee  or
\ncharges that may be levied against it.\tWhat s. 30(c) of the
\nAct seems to require is direct
\n377<\/span>
\nconnection between the land as such and the requirements  of
\nthe provisions of the Improvement Act.\tThe other ingredient
\nof  s. 30(c) is that the land must be required for  carrying
\nout the provisions of the Improvement Act.  In the  context,
\nthis second ingredient of the section seems to suggest\tthat
\nthe  land must be necessary for carrying out the  provisions
\nas such of the Improvement Act; in other words, we should be
\nable to say about the land in question that it was necessary
\nfor  carrying out a particular provision of the\t Improvement
\nAct.  The third and the last ingredient of s.30(c)  is\tthat
\nthe  necessity\tmust  be established for  carrying  out\t the
\nprovisions of the Improvement Act and not the policy of\t the
\nsaid  provisions  or the object which they are\tintended  to
\nachieve. Having regard to these ingredients of s. 30(c), the
\nquestion which calls for an answer is it shown that the land
\nin question is necessary to carry out any specific provision
\nof  the\t Improvement Act’?  It is difficult to\tanswer\tthis
\nquestion in favour of the respondent.\n<\/p>\n
It  is true that the betterment fee which is levied goes  to
\nconstitute an important item in the capital account under s.
\n122 of the Improvement Act.  It is also true that the  Board
\n‘has  the  power  to levy betterment fee in  order  that  it
\nshould\tsecure\tenough funds to carry  out  its\t obligations
\nunder  the Improvement Act.  Such a power has always  vested
\nin the Board and has now been statutorily conferred on it by
\ns.  78A.  Under s. 81, the Board can acquire more land\tthan
\nis  absolutely\tnecessary for the purpose of the  scheme  as
\nsuch,  and  may\t later dispose\tof  superfluous\t land.\t The
\nexistence of these powers cannot be disputed.  But would  it
\nbe consistent with the fair construction of s. 30(c) to hold
\nthat because the land in question can be made liable to\t pay
\nbetterment fee and the betterment fee thus realised from the
\nland  serves the purpose of s. 122 of the  Improvement\tAct,
\nthe land itself is required for carrying, out the provisions
\nof s. 122?  In order that s. 30(c) should be applicable, the
\nrespondent  must  point\t out a\tspecific  provision  of\t the
\nImprovement  Act for the carrying out of which the  land  as
\nsuch  is  required.   The  provisions  of  s.  122  of\t the
\nImprovement Act do not he help the respondent, because it is
\nnot possible to bold that for carrying out the provisions of
\ns. 122, the land in question is directly required.
\nThere is another aspect of the question to which we ought to
\nrefer  Section\t78A, like s. 78, deals with lands  which  in
\nterms  are  not required for the execution  of\tthe  scheme.
\nThese two sections provide for two categories of lands, both
\nof  which were originally comprised in the scheme,  but\t are
\nlater found to be not required for the scheme.\tNow, when s.
\n78A  expressly\tsays  that  the\t and  in  respect  of  which
\nbetterment  fee\t can  be levied, is  not  required  for\t the
\nscheme,\t it is not easy to accept the argument that  such  a
\nland   is  nevertheless\t required  for\tcarrying   out\t the
\nprovisions  of\ts.  78A.   In construing  s.  30(c),  it  is
\nnecessary  to  distinguish between the\tcarrying,,  out\t the
\nprovisions of the Improvement Act, and the achieve-\n<\/p>\n
378<\/span><\/p>\n
ment  or  the  accomplishment of the  objects  of  the\tsaid
\nprovisions.   In one sense, the land in question does  serve
\nthe   purpose  of  the\tImprovement  scheme,   because\t the
\nbetterment fee which is levied on it swells the funds of the
\nBoard  and  the\t funds are utilised by\tthe  Board  for\t the
\npurposes of carrying out the scheme; but the requirement  of
\nthe land for carrying out the provisions of the\t Improvement
\nAct  which alone can invoke s. 30(c), cannot be said  to  be
\nsatisfied  by this indirect connection between the land\t and
\nthe general purpose of the Improvement Act.
\nThere  is  one\tmore aspect of this  problem  which  is\t not
\nirrelevant.   Betterment  fee  is  levied  against  a  land,
\nbecause\t  its  value  is  increased  as\t a  result  of\t the
\nimprovement  scheme, and so, s. 78A authorises the Board  to
\nlevy betterment fee presumably on the ground that the  Board
\nis justified in recouping itself by such levy in respect  of
\nunearned  increment  in the value of the land of  which\t the
\nland-holder  gets  a  benefit.\t If  the  land-holder\tpays
\nbetterment  fee for such unearned increment in the value  of
\nthe land, he may apply under s. 25 of the Act for  enhancing
\nthe  rent  payable by the thika tenants to him.\t  But  there
\nappears\t to be no reason why a landlord, the value of  whose
\nland  has increased by the improvement scheme introduced  in
\nthe  area  in  which his land is situated,  should  get\t the
\nadditional benefit of exemption from the application of\t the
\nprovisions of the Act which give protection to the tenants.
\nHaving\tcarefully  considered  the  question  of  construing
\ns.30(c), we have come to the conclusion that the words\tused
\nin  s.\t30(c) do not justify the conclusion that  a  private
\nlandholder is intended to be equated with Government or with
\nthe  other  special bodies or authorities  whose  lands\t are
\nexempted from the operation of the Act by s. 30.  We do\t not
\nthink  that the Legislature intended that the provisions  of
\nthe  Act  should  cease\t to apply to  all  lands  which\t ore
\ncomprised  in  the scheme, because such\t a  provision  would
\nappear\tto  be\tinconsistent with the  categories  of  cases
\ncovered by clauses (a) & (b) of s. 30.\tBesides, if that was
\nthe  intention of the Legislature in enacting s.  30(c),  it
\nwould  have been easy for the Legislature to say that  lands
\ncomprised in the improvement schemes should be exempted from
\nthe  application  of  the Act.\tSection 30,  as\t we  already
\nemphasised, provides for an exception to the application  of
\nthe  beneficent\t provisions  of the Act, and  it  would,  we
\nthink. not be unreasonable to bold that even if s. 30(c)  is
\nreasonably capable of the construction for which Mr.  Pathak
\ncontends,  we  should prefer  the  alternative\tconstruction
\nwhich  is  also\t reasonably  possible.\t In  construing\t the
\nprovisions which provide for exceptions to the applicability
\nof   beneficent\t legislation,  if  two\t constructions\t are
\nreasonably  possible,  the  Court  would  be  justified\t  in
\npreferring  that construction which helps to carry  out\t the
\nbeneficent purpose of the Act and does not unduly expand the
\narea  or  the  scope of the exception.\t Therefore,  we\t are
\nsatisfied that the Court of Appeal was in error in
\n379<\/span>
\nreversing the conclusion of the trial Judge that the present
\nsuits filed on the original side of the Calcutta High  Court
\nwere incompetent.\n<\/p>\n
There is, however, one more point to which we ought to refer
\nbefore we part with these appeals.  Both the learned  Judges
\nin  the\t Court of Appeal have observed that if s.  30(c)  is
\nheld not to apply to the land in question on the ground that
\nit is not required for carrying out any of the provisions of
\nthe  Improvement Act, s. 30(c) would, in  substance,  become
\nredundant.   The  argument which was thus urged\t before\t the
\nCourt  of Appeal and has been accepted by it.  assumes\tthat
\nthe  Board  is\ta  local authority  within  the\t meaning  of
\n30(b)(iv)  and\tas such, the land which has  vested  in\t the
\nBoard  is already excepted from the operation of the Act  by
\nthe  said provision; and that means that the lands  acquired
\nby  the\t Board under the provisions of the  Improvement\t Act
\nhave already been provided for by s. 30(b)(iv).\t If that  is
\nso, there would be no cases to which s. 30(c)\tcan   apply.
\nSince this point arises incidentally in construing S.  30(c),
\nwe  do not propose to decide in the present appeals  whether
\nthe  Board  is a local authority within the  meaning  of  s.
\n30(b)(iv).   In\t dealing  with\tthis  particular   argument,
\nhowever, we are prepared to assume that the Board is such  a
\nlocal  authority.  Even so, it is possible to hold  that  s.
\n30(c) does not become redundant, because though s. 30(b)(iv)
\nmay include lands acquired by the Board, there may still  be
\nsome  other  lands which are not acquired by the  Board\t but
\nwhich,\tnevertheless, may be required for carrying out\tsome
\nprovisions  of the Improvement Act.  Take, for instance,  s.
\n42 of the Improvement Act.  Section 42(b) lays down that any
\nimprovement  scheme  may provide for raising,  lowering,  or
\nlevelling  any\tland in the area comprised  in\tthe  scheme.
\nSection\t 42(c) provides for the formation and  retention  of
\nopen  spaces.  Similar provisions are made by  s.  35C(1)(i)
\nand (j) as introduced by the Amending Act 32 of 1955.  It is
\npossible  to take the view that the lands required  for\t the
\npurposes specified in these provisions of s. 42 or s. 35C of
\nthe  Improvement Act are required within the meaning  of  s.
\n30(c)  of the Act, though they may not have  been  acquired.
\nBut  apart  from this consideration, the  argument  that  s.
\n30(c) would become redundant cannot, we think, be treated as
\ndecisive,  because  it is not unknown that  the\t Legislature
\nsometimes makes provisions out of abundant caution.  When s.
\n30(c) was enacted in 1949, the Legislature may have  thought
\nthat  in order to avoid any doubt, dispute or difficulty  in
\nregard\tto the question as to whether the Board would  be  a
\nlocal,\tauthority  or  not, it would be\t better\t to  make  a
\nspecific provision in respect of lands which are acquired by
\nthe  Board as well as those which would be required for\t the
\npurpose\t of carrying out the provisions of  the\t Improvement
\nAct.   It is true that the lands which are  required  within
\nthe  meaning  of  s. 30(c) would  include  lands  which\t are
\nactually acquired as well as those which might not have been
\nacquired  but are, nevertheless, required for  carrying\t out
\nthe provisions of the Improvement Act.\tBut having specified
\nrespective
\n380<\/span>
\nauthorities  or\t bodies in clause (a) & (b) of\ts.  30,\t the
\nLegislature  may  have thought that it would  be  better  to
\nrefer to the Improvement Act and lands required for carrying
\nout  its  provisions, specifically  and\t expressly.   Having
\nregard to the considerations on which our interpretation  of
\ns.  30(c)  is  based, we are not prepared  to  attach  undue
\nsignificance  to the argument based on the  assumption\tthat
\nthe  Board  is a local authority within the  meaning  of  s.
\n30(b)(iv)  and\tthat would make the provisions of  s.  30(c)
\neither\tsuperfluous or would deprive the said  provision  of
\nany significance or importance.\n<\/p>\n
The  result is, the appeals are allowed, the decrees  passed
\nby  the Division Bench are set aside and those of the  trial
\nJudge restored with costs throughout.\n<\/p>\n
Appeals allowed.\n<\/p>\n
381<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sheikh Gulfan And Others vs Sanat Kumar Ganguli on 15 March, 1965 Equivalent citations: 1965 AIR 1839, 1965 SCR (3) 364 Author: P Gajendragadkar Bench: Gajendragadkar, P.B. (Cj) 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, […]<\/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-203099","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSheikh Gulfan And Others vs Sanat Kumar Ganguli on 15 March, 1965 - 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\/sheikh-gulfan-and-others-vs-sanat-kumar-ganguli-on-15-march-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sheikh Gulfan And Others vs Sanat Kumar Ganguli on 15 March, 1965 - 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