MUNESHWAR RAM Vs. SECOND LAND ACQUISITION COLLECTOR

JUDGEMENT

(1.) THE petitioners are eleven in number. THEy say that they are dwellers in a Bustee at No. 16, Rajendra Mullick Street, Calcutta, and some of them have their shops in certain premises in the said Bustee. In the affidavit-in-opposition, affirmed by the respondent Second Land Acquisition Collector, it is however, denied that petitioners Nos. 2 and 4, are in any way Interested in any of the premises in the said Bustee. THE Bustee at No. 16, Rajendra Mullick Street, Calcutta along with several other Bustees was notified for acquisition, for the purposes of Scheme No. LXIX of the Calcutta Improvement Trust, and, on May 12, 1955, the following notice, under section 43 of the Calcutta Improvement Act, was published in the Calcutta Gazette :- "Scheme No, LXIX (widening of Madan Chaterjee Lane). THE Board of Trustees for the Improvement of Calcutta hereby give notice that a Street Scheme viz. Scheme No. LXIX (widening of Madan Chatterjee Lane) has been framed in Wards Nos. 21 and 25 of the Calcutta Municipality in the area bounded as follows. Objection to the Scheme will be received up to 29th June, 1955. S. K. Gupta CHAIRMAN" THEreafter, on January 24, 1957, the sanction of the Governor to Scheme No. LXIX, under sections 48 and 49 of the Calcutta Improvement Act, was published in the Calcutta Gazette. It appears that Calcutta Improvement Trust had an earlier improvement scheme in respect of the Bustee at Rajendra Mullick Street and other Bustees and had, on October 4, 1945, published the following notifications, under section 43 of the Calcutta Improvement Act, in the Calcutta Gazette :- "Bustee Improvement Scheme No. 1. THE Board of Trustees for the Improvement of Calcutta hereby give notice that a Bustee Improvement scheme for widening of Rajendra Mullick Street and Baranashi Lane to 30 feet and construction of several 8 feet passages between blocks of buildings, viz. Scheme No. 1, has been framed in Ward No. 6, of the Calcutta Municipality for the areas bounded as follows : - Objection to the scheme will be received up to 21.12.1945. J. A. Parks CHAIRMAN" Under the aforesaid Bustee Improvement Scheme, it appears from the particulars in paragraph 6 of the petition, the following premises were sought to be acquired : - Madan Chatterjee Lane - Premises Nos. 1, 3 and 20. Rajendra Mullick Street-" " 3, 5 and. 7. Under Scheme No. LXIX, it appears from the particulars in para. 6 of the petition, the following premises arc to be acquired : - Upper Chitpore Road-Premises No. 58 (portion) Dwaraka Nath Tagore Lane-" " 5 Madan Chatterjee Lane- " " 22 Pratap Ghosh Lane- " " 6 Rajendra Mullick Street- " " 16, 13, 18/1, & 20. Singhee Bagan Lane- " " 1 (C.C). THE petitioners allege that Scheme No. LXIX has been malafide described as a Street Scheme, for the purpose of improving existing moans of communication. THEy say that the scheme is in reality a general improvement scheme, within the meaning of section 36 of the Calcutta Improvement Act, and this, they say, will appear if the Bustee improvement scheme of 1945 and scheme No. LXIX of 1955, covering the identical area be read together. THEy further say that the Scheme has been purposively misdescribed as a Street Scheme, by the Calcutta Improvement Trust, in order to avoid its responsibilities under section 39C of the Calcutta Improvement Act, under which the Board of Trustees for the Improvement of Calcutta are obliged to frame a housing scheme for the re-housing of displaced bustee dwellers and to re-house them before displacement. THEy also say that no notification under section 4 of the Land Acquisition. Act was made, no proceeding under section 5A of the Act was resorted to and no declaration, under section 6 of the Act was made before the acquisition was effected. THE premises of the petitioners it is alleged, were illegally purported to be acquired, on payment of a small amount as cost of removal. THEy say that under the garb of widening Madan Chatterjee Lane, other roads, namely Rajendra Mullick St., Singhibagan Lane, Saha Lane, Maharshi Lane are illegally going to be widened, in order to effect a general improvement of the area. THEy make the grievance that they have been served with a notice of delivery of possession on the basis of the illegal acquisition and contend that the respondents should be restrained from taking away possession from them. THEy say that they demanded justice from the respondents but justice has been refused to them. With the grievances aforesaid, they moved this court, under article 226 of the Constitution, praying for a Writ of Mandamus upon the respondent No. 1, directing him to cancel or revoke the notice for delivery of possession or alternatively to re-house the petitioners before displacing them from the premises now occupied by them for a Writ of Certiorari quashing the Scheme and the award and for a Writ of Prohibition upon the respondents restraining them from giving effect to the Scheme and obtained this Rule. It is necessary for me to determine First of all whether the Bustee improvement scheme of 1945 and Scheme LXIX of 1955 are identical Scheme. In the affidavit-in-opposition affirmed by Deputy Chief Valuer of the Board of Trustees for the Improvement of Calcutta, it is slated as follows : - (para. 8) With reference to paragraph 6 of the said petition I deny that the said Bustee Improvement Scheme No. 1 of 1945 and the present Street Scheme No, LXIX are of the same area and cover the said premises as alleged therein. From the particulars given in the said paragraph 6 of the petition it will be found that whereas under the said Bustee Improvement Scheme certain premises of Rajendra Mullick Street were acquired under the present Scheme No. LXIX, certain other premises of the said street are proponed to be acquired." (para. 11) "I deny that the said Scheme and the Bustee Improvement Scheme No. 1 covered the same area as alleged or at all or that it will be shown from the Plans that it is a General Improvement Scheme. THE said Bustee Improvement Scheme No. 1, has been carried out and completed some time ago and the same will appear from the plans of the said Scheme. (para. 14) "the widening of Madan Chatterjee Lane is a nomenclature given to the Scheme to show that that is the principal object of the said Scheme and for purposes of convenience and identification. THE said Scheme in fact provides mainly for widening of Madan Chatterjee Lane and only a small portion of Singhibagan Lane and Saha Lane are being widened, I deny that the said Scheme includes any laying out of any park or other amenities of Bustee Improvements as alleged therein. I deny that the said Scheme No. LXIX is a General Improvement Scheme within the meaning of section 36 of the said Act or that it is intended for the purposes of clearance and better development or re-development of the area or for any other purpose as mentioned in the said paragraph. THE said Scheme No. LXIX is a Street Scheme under sec. 39 of the said Act, and all allegations in the said paragraph that it is a General Improvement Scheme are denied." (para 16) "It was at one time thought that Madan Chatterjee Lane would be widened up to the crossing of Madan Chatterjee Lane and Rajendra Mullick Street. But after the said Bustee Improvement Scheme No, 1 was executed and a good portion of Madan Chatterjee Lane from the above crossing was widened, it was decided that Madan Chatterjee Lane should be widened up to the Upper Chitpur Road to enable the public to enter the said Lane from Chittaranjan Avenue to the well-known house of Tagore at Jorasanko, which will soon be made "Robindra Bharati". This was one of the main objects for which he said Scheme No. LXIX was so framed by the Board." In view of the denial contained in the affidavit-in-opposition and taking into consideration the particulars of the two schemes given by the petitioners themselves, in the paragraph 6 of the petition, hereinbore set out, I hold that the Bustee Improvement Scheme of 1945 and Scheme No. LXIX are different Schemes. THE extent of Scheme LXIX appears in detail from the sanction given under section 48 of the Calcutta Improvement Act (annexed to the petition) ; that document makes it clear that widening was not limited to Madan Chatterjee Lane alone. THE Scheme was labelled as "widening of Madan Chatterjee Lane" merely as a convenient form of description and from that label only it cannot be assumed that the widening was intended to be limited to Madan Chatterjee Lane alone. I, herefore, hold that Scheme LXIX was not misdescribed as a Street Scheme but was in reality a Street Scheme for the widening of Madan Chatterjee Lane and other streets. Now, if the Bustee Improvement Scheme of 1945 and Scheme LXIX of 1955 are not identical, and I hold that they are not, then Scheme LXIX is only a Street Scheme, as denned in section 39 of the Calcutta Improvement Act. Section 39 is quoted below : -