Norman Macleod, Kt., C.J.
1. Plaintiffs Nos 1 to 5 in this suit are the trustees of the Tulsidas Gopalji Charitable Trust. As such trustees they are in possession of certain immoveable property which defendants Nos. 2 and 3 desire the Government of Bombay to acquire fur them under the provisions of the Land Acquisition Act I of 1894. Plaintiff No. 6 is in occupation of a portion of the property as the lessee from plaintiffs Nos. 1 to 5.
2. The plan of the land appears at p 23 of the print The land marked yellow was acquired by the Corporation in or about the year 1917 for certain purposes including the building of a Primary School, It does not seem, however, that up to now the Corporation has proceeded with the construction of the school. On September 27, 1 920, the Municipal Commissioner addressed a letter to the Corporation which appears at p. 23A of the print:-
I have the honour to refer to Corporation Resolution No. 1609, dated June 14, 191(sic), approving of the acquisition of a site for the construction of the Primary School at Mazaon and to state the at after further enquiries the site proposed has been found to be inadequate for the needs of primary education in this locality. On making enquiries as to how this difficulty could be ramedied, Mr. Maokison has come to the conclusion that the area in question to the East of Mazagaon Road is at present very badly developed and furnished an opportunity not only for the construction of school accommodation but for development as quarters for Municipal servants and the provision of a public park. I attach a plan No 67 of August 12, 1920, showing the existing site already acquired for the Primary School, and Mr. Maokison's proposed development I do not think that this development can be considered to be final, but there is no doubt that an opportunity exists for acquiring land in this locality at a reasonable rate to meet several Municipal needs. The Corporation in their Resolution No. 4775, dated September 15, 1919, have requested us to expedite the submission of proposals for the housing of certain of the Municipal servants, The locality in question would be very suitable. As I have already stated the land is at present very badly developed and the present lease will expire in a few years.
It is estimated that the total cost of the land with the quarters to be constructed thereon will he approximately Rs. 23J lakhs. From the development) as proposed by Mr. Mackison, it is anticipated that it would be possible to provide public park and the play-ground for the school and still to derive a return of about four percent on the capital outlay. The development suggested provides eighty-four shops and one hundred and twenty six quarters of four rooms each. The area to be acquired is 27,213 square yards which with the area already acquired 2,225 square yards will give a total area of 29,438 square yards It is estimated that the number of people to be dishoused will be three or four hundred, whereas accommodation would be provided by the proposed development for about 750 people in addition to the school and the park.
As already stated I am not entirely satisfied that the development proposed it the best suited to the locality but I am emphatically of opinion that the land in question should be acquired for development as a Municipal estate comprising a school and a play-ground, quarters for Municipal servants and a public recreation ground. The details to be laid out can be adequately arranged at a subsequent date after full discussion.
I, therefore, request the sanction of the Standing Committee and the Corporation to the acquisition of an area of approximately 27,213 square yards on the east side of Mazagaon Road between Dockyard Road end Matharpakhady Road and to my making an application to Government for the acquisition under the Land Acquisition Act of the area mentioned above.
4. The said letter was thereafter referred to, and considered by, the Roads Committee, and eventually the Municipal Commissioner addressed a letter to Government on March 28, 1922, which appears at p. 16 of Part III of the print:-
I have the honour to state that the Standing Committee have authorised me to apply to Government) for the acquisition under the Land Acquisition Act of the property bearing N. S. No. 3607 at Mazagaon and Dock Yard Roads shown in crimson colour on the accompanying plan marked J. M. F. /36O7 (in duplicate) in connection with its development as a Municipal estate comprising a school, a play-ground, quarters for Municipal servants etc.
I request that Government will be pleased to take necessary steps in the matter and place me in possession as early a date as practicable.
The usual draft notification under Section 4 in duplicate is herewith forwarded.
5. A notification was thereafter published under the provisions of Section 4 of Act I of 1894, On June 27, 1922, a notification under Section 6 of the Land Acquisition Act was published. The preamble states:-
Whereas it appears to tie Governor in Council that land is required to be taken by Government at the expense of the Municipality of Bombay for a public purpose, viz., the development as Municipal estate comprising a school, a play-ground, quarters for Municipal servants, etc., it is hereby declared that for the above purpose the following plots of land are to be acquired in the aforesaid city of Bombay.
6. The plaintiffs' solicitors then wrote to the first defendant complaining about the property being acquired by the Municipality ' under the guise of a public purpose, not in the interests of the inhabitants of the neighborhood, but with a view to profiteering.' Similar letters were written to the Corporation and to the Municipal Commissioner. On September 18, 1922, a notice was given that the plaintiffs intended to institute a suit against the Secretary of State for India in Council and the Municipality of Bombay.
7. On June 21, 1923, the plaintiffs filed this suit praying that it might be declared that all the proceedings taken in connection with the acquisition of the property were invalid and of no effect, and that the defendants, their officers and/or agents forthwith pending the hearing of the suit and thereafter permanently be restrained from taking any farther steps to acquire possession of the property. The plaintiffs contended that the second and third defendants had no power to acquire the property for the purpose for which they proposed to acquire the same. In particular they had no power to acquire the property for the purpose of ' (a) erecting quarters for the accommodation of Municipal servants; (6) erecting shops to be let out on hire for profit; and (c) recoupment of expenses incurred in the acquisition of other land acquired or to be acquired for legitimate purposes. '
8. Defendants Nos. 2 and 3 have put in their written statement, and the real defence to the plaintiffs' claim is contained in para 10 thereof :-
Referring to para 9 of the plaint these defendants without prejudice to the contention contained in para 9 hereof deny each and every contention contained in the said para and say that they have power to acquire land for the purposes therein mentioned. These defendants say further that in fact the purposes (b) and (c) mentioned in the said para are not mentioned in the said declaration which states the purposes for which the said land is required. These defendants deny that they in fact propose to acquire the said land for the said purposes (b) and (c). The erection of shops if within the powers of the second defendants (as they say it is) is merely incidental to the said proposed scheme. These defendants say further that the second defendants would in any event be entitled to use the said land for any purpose for which the Municipal Act authorised its use although such purpose was not that mentioned in the said declaration.
9. Defendants Nos. 1 and 4 have filed their written statement, their main contention being that by reason of Section 6 (3) of the Land Acquisition Act 1891 the said declaration is conclusive evidence that the land is needed for a public purpose and the plaintiffs are debarred from alleging the contrary.
10. Numerous issues were rained at the hearing. A large number of them were purely on technical points which the defendants might well have conceded. On issues Nos. 2 and 7, whether the suit was maintainable as against all the defendants, viz., 1 to 4, the learned Judge held that the suit was maintainable in spite of Section fi, Clause (3), of the Land Acquisition Act; it even seems to have been conceded before the learned Judge by the defendants that the suit was maintainable. However in any event it is perfectly clear there is nothing in the point.
11. In Amulya Chandra Banerjea v Corporation of Calcutta I. L. R(1922) . Cal. 838 P. C. a suit was brought for a declaration that the Municipality of Calcutta was not competent, according to law, to acquire certain land in Calcutta, the property if the appellants. The District Judge held that the declaration made by the Governor on September 6, 1U15, under the Land Acquisition Act, that the land was required for a public purpose was conclusive against the plaintiffs. On appeal to the High Court a different opinion was expressed by the Judges in appeal. They considered that the declaration of the Governor under Section 6 (3) of the Land Acquisition Act was not conclusive. The case went to the Privy Council, but the point does not appear to have been argued before their lordships. It may be presumed that it was thought that the point was not worth arguing.
12. But in Trustees fur the Improvement of Calcutta v. Chandra Kanta Ghosh I. L. R(1919) . Cal. 500 21 Bom. L. R. 586 P.C., the point does seem to have been taken, and at p. 506 there is the following passage :-
Whenever the Local Government does sanction an improvement scheme, there is a duty to announce the fact by notification, and the publication of a notification is conclusive evidence that the scheme has been duly framed and sanctioned, This provision does not affect the right of the respondent to institute a suit to have it declared that the Board in framing the scheme acted ultra tires, or that the scheme as sanctioned does not authorise the appellants to acquire by compulsion the land in question.
13. It was open then to the plaintiffs to seek the declaration they ask for in the suit. If the Corporation were not empowered by the provisions of the City of Bombay Municipal Act, 1888, to acquire the land in suit, then the plaintiffs would be entitled to the injunction they asked for. The learned trial Judge has held that the Municipality were empowered by the provisions of Section 63, Clause (k), to acquire land for the purpose of building quarters for Municipal servants, as that way a measure likely to promote public safety, health, convenience or instruction.
14. That question also arose in the case just referred to, viz. Amulya Chandra Banerjea v. Corporation of Calcutta. There the Municipality desired to acquire surplus land for the purpose of erecting, at the expense of a private benefactor, a dharmashahi for the use of the numerous worshippers resorting at certain Reasons of the year to a Hindu temple within the area of the improvement scheme. Their lordships said (p. 844):-
The construction and maintenance of a dharamshala cannot be said to be ruled out of [s. 14] (xi), which covers any other matter which is likely to promote the public health, safety or convenience, or the carrying out of this Act.' This being so, their Lordships would be the last to question the opinion of, of the exorcise of discretion by, the Municipality of Calcutta, even if they differed from it, which they certainly do not. The Act by a 14 and Section 536 has expressly placed the discretion, not with this Board or with a Court of law, but with the Municipality itself. The Corporation has the power of acquisition of land which may in their opinion be needed for carrying out any of the purposes of the Act.
15. The grounds on which the Municipal Commissioner considered that the land in suit should be acquired for the purpose of housing Municipal servants appear in his letter of July 23, 1919. See Exhibit 1. We agree with the trial Judge that the building of quarters for Municipal servants should be held to be a measure likely to promote public convenience In any event if the Municipal Commissioner and the Corporation think that such measure is likely to promote public convenience, the matter lies within their discretion, and it would not be for a Court of law to interfere with the exercise of that discretion.
16. The only other point in the case is whether the fact that the Municipal Commissioner had recommended that a portion of the land so acquired should be built upon, not only for the purpose of providing quarters for Municipal servants, but also for providing shops, was a sufficient ground for saying that the whole object of the Corporation in acquiring this land was contrary to the provisions of the Act. The learned Judge on this question said :-
It is not suggested before me and cannot be suggested that it is open to the Corporation to acquire laud be put up shops with a view to earn any dividend or interest on the outlay. It is urged, however, that here the purpose of acquisition is different, and that the putting up of shop is merely incidental to it. After a careful consideration of this argument, I have come to the conclusion that the putting up of eighty-Tour shops would not be merely an incidental thing. It was a part of the scheme which was supposed to reduce the . burden of a heavy outlay in building quarters for Municipal servants and in acquiring the property. Indeed as suggested by the Municipal Commissioner in his letter of September 27, 19'20, it may be possible to after the scheme after the whole land is acquired and even to make it more profitable. But on ' the record as it stands I am clear that the putting up of eighty four shops is a substantial part of the development scheme for which this land is acquired. The public body which is given powers to acquire land for the purposes of the Act must be properly confined to the limits of those powers, and cannot be allowed to exceed the same by treating acquisition of laud for shops as merely incidental to the main scheme. ]n other words when the acquisition of an area is based upon the development schema which contemplates an appreciable part thereof to be put to use not permissible under the Act, the acquisition cannot be justified. It is possible for the Corporation to require the whole or a pivot of this area for school, recreation ground and building quarters for Municipal servants so far as they reasonably and bona fide require it for those purposes only. But the present acquisition is for the purpose of developing it as a Municipal estate not only for purposes for which it is permissible to the Corporation to acquire land but also for a purpose for which it is not permissible to the Corporation to acquire any land. It is not possible to say how much of the acquired land would be put to such use. It is sufficient to say that the putting up of shops which could be let to the public on rack rent is a substantial part of the scheme for which the land is required by the Municipality and would take up an appreciable area of the land acquired. No decided oases bearing on this point have been cited before me, and I have to decide the question with reference to this acquisition on the particular facts before me. Whether the shops come in incidentally in the whole scheme or form a real and practical basis of the whole scheme, it is undoubtedly a part, and in my opinion a substantial part and by no means a negligible part, of the scheme; and I do not see how under the cover of acquisition for recognised purposes any land could be acquired for a purpose not recognised by the Municipal Act.
17. The result was that a decree was passed in favour of the plaintiffs, and it was declared that all the proceedings taken by defendants Nos. 2 and. 3 in connection with the application of the property in suit were invalid and of no effect, and that defendants Nos. 2 and 3 were restrained permanently from taking any further steps to acquire possession of the property under the declaration dated June 27, 1922.
18. Now it will be seen from the plan on p. 23 what part of the area to be acquired was intended to be built upon to provide quarters for Municipal servants. It was contended for the appellants that merely because the Municipality had in contemplation the utilization of the ground floor of the premises to be built upon that area as shops, there was no sufficient ground for holding that the Municipality could not proceed with the scheme, and could not be allowed to ask Government to continue the proceedings under the Land Acquisition Act. We cannot agree with the conclusion of the learned Judge that because the Commissioner and the Corporation contemplated building these shops, that was a substantial part of the scheme, or as the learned Judge has in effect held, a part of the scheme on which the whole of the acquisition proceedings depended, so that the acquisition of this large area was entirely outside the powers of the Corporation. It may be inferred from the Municipal Commissioner's letter of September 27, 1920, that the rents which were expected to be collected from the tenants of the shops on the ground floor would be higher than the rents of the same premises if they were occupied for living purposes by Municipal servants. But the only result of the ground floor premises being occupied by Municipal servants would be that the return on the capital outlay would be less. It is really a matter of administration for the Corporation to decide, when the land has been acquired and the plans for providing quarters for Municipal servants have been made out, whether a certain portion of the premises can be more conveniently let out for other purposes That is a matter which has to be decided when the land has been acquired, and the mere fact that the provision of shops is contemplated would not be sufficient, in our opinion, to invalidate the whole scheme.
19. That really is the main question in the appeal. There is no necessity for us to deal with the other points that arise from the remaining issues which were considered by the learned Judge. There are twenty-four grounds in the memorandum of appeal, and the learned Counsel who argued the case for the appellants has wisely touched upon only those with which we have dealt. It would be better in a case of this description if technicalities were avoided, as much time would be saved thereby.
20. The appeal will be allowed and the suit dismissed with costs throughout. One set of costs allowed. Cross-objections dismissed with costs. The Taxing Master can tax the costs of issues Nos. 1, 2, 3, 6 and 7 which are decided against the defendants, and the plaintiffs will be entitled to the costs of those issues.