KANCHAN LAL SARKAR Vs. IMPROVEMENT OF CALCUTTA

JUDGEMENT

(1.) The Petitioner Kanchan Lai Sarkar along with his co-sharers owned and possessed various premises in Rajendra Lal Mitra Road. Some of the said premises were in khas possession of the Petitioner and his co-sharers and some were tenanted and were governed by the West Bengal Premises Tenancy Act, 1956 and the Calcutta Thika Tenancy Act, 1949. By partition amongst the co-sharers at two successive stages, premises Nos. 133/1 and 134 Raja Rajendra Lal Mitra Road since renumbered into several other premises appertaining to the said Rajendra Lal Mitra Road were allotted to the Petitioner and the Petitioner is now the exclusive owner of the premises in question. The Respondents Nos. 7 to 37 are the thika tenants under the Petitioner in respect of the holding in question.

(2.) The Respondent No. 1, viz. the Calcutta Improvement Trust framed a Scheme known as Street Schme No. IV-M (Beliaghata Main Road to Narkeldanga Main Road) and the Respondent No. 2, viz. the Chairman, Calcutta Improvement Trust, issued notice under Section 78B(1) of the Calcutta Improvement Act, 1911, informing the then owners of the holding that the Board of Trustees for the Improvement of Calcutta proposed to assess the amount of betterment fee payable under Section 78A of the Calcutta Improvement Act in connection with the aforesaid Street Scheme No. IV-M. It transpires that the Petitioner participated in the said assessment proceeding and did not object to such assessment of betterment fee as admittedly the Petitioner had expected that, the benefit of the improvement would accrue to the Petitioner himself. It also appears that the Petitioner did not ask for any apportionment, of the betterment fee between himself and his tenants in respect of the holdings in question. The Petitioner's case is that the Petitioner did not ask for such apportionment in view of the fact that the tenants particularly the thika tenants were then liable to be evicted for development purposes and that the Thika Tenancy Act was held not applicable to an area included in the Improvement. Scheme.

(3.) By a notice dated November 10, 1966, the Chairman, Calcutta Improvement Trust, informed the Petitioner that Rs. 38.000 had been assessed as betterment fees under Section 78B(2) of the said Act of 1911 and the Petitioner by a letter dated February 7, 1967, agreed in writing his liability for the said betterment fee assessed. The Petitioner's further case is that subsequently by amendment of the Calcutta Thika Tenancy Act the rights of the thika tenants were amply protected and it is now practically impossible to evict a thika tenant and in all reality the Petitioner has only the right to receive rent and the said rent also cannot be enhanced substantially because of provisions in the Thika Tenancy Act as amended. In September 1972 the Petitioner received a demand from the Chairman, Calcutta Improvement Trust, for the payment of the said betterment fee of Rs. 38,000 before September 16, 1972 and it was further stated in the said letter of demand, that from November 16, 1972, the said sum would also carry an interest at the rate of 6% per annum. The Petitioner thereafter by his letter dated November 14, 1972, informed the said Chairman that in view of the changed provisions of law the benefits of the Improvement Scheme would accrue principally to the tenants and the said tenants were 1 also persons interested in the premises in question and that it was absolutely necessary that the amount of betterment fee assessed should be apportioned between the Petitioner and the tenants. In the said letter the Petitioner further contended that the provisions relating to the imposition of betterment fee in the said Calcutta Improvement Act of 1911 were ultra vires the Constitution. The Chief Valuer, Calcutta Improvement Trust, however, informed the Petitioner that in view of the provisions of Section 78A of the said Act of 1911, the betterment fee could not be apportioned between the Petitioner and his tenants. In the meantime in the judgment passed on December 1, 1972, in C.R. Nos. 4110-4111 of 1964, the Division Bench of this High Court held that Section 78A to Section 78G of the Calcutta Improvement Act, 1911, were ultra vires the Constitution. On August 31, 1973, the instant writ petition was moved before this Court, inter alia, challenging the vires of the provisions of Sections 78A to 78G of the said Act and for cancelling the levy and/or demand of betterment fee by the Trustees for the Improvement of Calcutta as contained in various annexures appended to the writ petition being annexs. A, B, C, E and F.