- (1.) THE petitioners reside in a Bustee at premises no. 20, Rajendra Mallick street, Calcutta, as tenant. A scheme was framed by the respondent no. 2 (Trustees for the Improvement of calcutta) being scheme no. LXIX under the calcutta Improvement Act, 1911, (hereinafter referred to as the Act)for widening a street namely Madan chatterjee Lane and also for providing building sites. The respondent No. 3 (the State of West Bengal) by a Notification dated december 25, 1956 sanctioned the said scheme. In this scheme was included the said premises no. 20, rajendra Mallick Street, along with several other Bustees for acquisition of the same under the scheme. In the petition it is alleged that the said scheme has been wrongfully and malafide described as a street scheme, though in fact it is a general improvement scheme. This was done, it is alleged, for avoiding the obligation imposed under section 39c of the Act, to make provision for re-housing of Bustee dwellers. This very scheme however was the subject-matter of a previous writ petition in this Court in (1)Muneshwar Ram v. the Second Laud acquisition Collector 71 C. W. N. 292 and banerjee, J. held that the scheme was not a general improvement scheme but a street scheme under the Act and therefore the petitioner in that case was not entitled to be re-housed under section 39c of the Act. This decision was taken up in appeal, and the Court of appeal upheld the judgment and order of Banerjee, J. As this scheme has been held by this Court to be a street scheme, Mr. Ajoy Ghosh, learned counsel for the petitioner did not contend that it was a general improvement scheme and for that reason the petitioners were entitled to be re-housed under section 39c of the Act, but he wanted to have it recorded that he was not giving up this point. He, however, contended that section 39b read with section 47 (2) (f) of the Act imposed a mandatory obligation upon the respond-no. 2 for construction of dwellings, shops etc. for persons who had been displaced by reason of execution of an improvement scheme. I shall presently come to the provisions of section 39b and section 47 (2) (f) of the Act.
(2.) THE main grievance of the petitioners is that no scheme for re-housing of Bustee dwellers had been framed under the said scheme or under any other scheme, and no such scheme had been submitted to the respondent no. 3 for approval. It is contended that as no re-housing scheme has been framed and approved the respondents are not entitled to proceed with the execution of the said scheme no. LXIX. It is also contended that the said scheme is also invalid and contrary to law. On these grounds the petitioners obtained a rule nisi on a Writ petition on October 13, 1965 and also obtained an interim order restraining the respondents from taking possession of the said premises no. 20, rajendra Mallick Street.
(3.) IT is necessary briefly to refer to the relevant provisions of the Act regarding improvement schemes, and also the conditions imposed upon the respondent no. 2 for framing and executing such scheme. Section 36 deals with general improvement scheme. Section 39 deals with street schemes, and provides that Board may frame a street scheme after passing a resolution to that effect for: (a) providing building sites, or (b) remedying defects, ventilation, or (c) creating new, or improving existing, means of communication and facilities for traffic, or affording better facilities for conservancy. Section 39a deals with housing accommodation scheme, with which I am not concerned in this application. Section 39b is as follows: 39b. "the Board may frame schemes (in this Act called re-housing schemes) for the construction, maintenance and management of such and so many dwellings, shops and other classes of accommodation as they may consider ought to be provided for persons who - (a) are displaced by the execution of any improvement scheme sanctioned under this Act, or (b) are likely to be displaced by the execution of any improvement scheme which it is intended to frame, or to submit to the State Government for sanction under this Act". Section 39c provides that when a general improvement scheme prescribed by section 36 or a housing accommodation scheme prescribed by section 39a or a combination of both is likely to cause displacement of persons dwelling in a Bustee, provision for re-housing of the Bustee dwellers shall be made either in the scheme itself or by another scheme and such scheme with statement of the rent proposed to be charged shall be submitted to the State government for its approval before ;any step is taken under section 43, section 47 (1) provides that the Board shall consider objections and representations from persons interested in or affected by a scheme and after hearing such objections, a Board may either abandon the scheme or apply to the state Government for sanction of the same with such modification as the board may consider necessary. Section 47 (2) (f)provides that every application submitted under sub-section (1)shall be accompanied by a statement of the arrangement made or proposed for the re-housing of persons who are likely to be displaced by the execution of a scheme.;