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Hamabai F. Petit and Moosa Haji Hassam Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Appeal No. 24 of 1910, Suit Nos. 975 of 1908 and 1056 of 1909 and Appeal No. 25 of 1910
Reported in(1911)13BOMLR1097; 12Ind.Cas.871
AppellantHamabai F. Petit and Moosa Haji Hassam
RespondentThe Secretary of State for India in Council
lease--perpetual lease--landlord and tenant--lease to he surrendered for public purpose--land required for building houses for government officers--public purpose--land acquisition act (i of 1894), section 6.;in 1854, the east india company demised certain lands to the defendant's predecessor-in-title for a term of ninety-nine years, the term being renewable indefinitely on certain conditions. the lease contained a clause that the company were entitled to resume the lands 'for any public purpose.' in 1908, the government informed the defendant that they were desirous to resume possession of the land for a public purpose and called upon her to surrender possession. the public purpose in question was 'the purpose of providing accommodation for government officers.'the defendant having..........beneficial occupation, the english courts have gone on to consider whether the occupation is for a public purpose, a term which does not occur in the section of the statute. but the rule of law to be deduced from them, as now prevailing, is that there is no beneficial occupation for the purposes of rating, where property is occupied either by the crown or by the servants of the crown for crown purposes, the occupation of the latter being in that event occupation of the crown itself: mersey docks v. cameron (1864) 11 h.l.c. 443 . and the reason of the rule is that the crown, being not named in the statute, is not bound by it. that, even upon that test, the decisions are not easy to reconcile with one another or with any logical principle is apparent from the remarks of sargent c. j. in.....

N.G. Chandavarkar, Kt., J.

1. I agree with Beaman J., from whose decree this appeal is preferred, that the English decisions, which were cited before him and which have also been cited before us in support of the appellant's contention as to the meaning of the term 'public purposes,' all turned upon its meaning with reference to the law of rating and cannot be safe guides in the present case, where different considerations have to be taken into account. Those were decisions upon the interpretation of a section in the Poor Relief Act of 1601 (43 Eliz. Clause 2), according to which the test for determining whether a particular property is liable to the rate there contemplated is that of beneficial occupation. No doubt, in determining what is beneficial occupation, the English Courts have gone on to consider whether the occupation is for a public purpose, a term which does not occur in the section of the Statute. But the rule of law to be deduced from them, as now prevailing, is that there is no beneficial occupation for the purposes of rating, where property is occupied either by the Crown or by the servants of the Crown for Crown purposes, the occupation of the latter being in that event occupation of the Crown itself: Mersey Docks v. Cameron (1864) 11 H.L.C. 443 . And the reason of the rule is that the Crown, being not named in the Statute, is not bound by it. That, even upon that test, the decisions are not easy to reconcile with one another or with any logical principle is apparent from the remarks of Sargent C. J. in the judgment of this Court in The University of Bombay v. The Municipal Commissioner for the City of Bombay ILR (1891) 16 Bom. 217, of Lord Alverstone C. J. in the English case of Wixon v. Thomas [1901] 1 K. B. 43, and of Lord Bramwell in Coomber v. Justices of Berks (1883) 9 App. Cas. 61. The case of Wixon v. Thomas is instructive as showing the present tendency of the English Courts towards a more liberal interpretation of the term 'public purposes' even with reference to the law of rating.

2. In the present case that expression occurs in a perpetual lease granted by the East India Company in 1854 under whom the appellant claims, subject to the condition that the Company should be entitled to resume the land 'for any public purpose.'the case of Government, who claim under the Company, is that the cost of living, including house-rent, having increased in the town and island of Bombay, it has become necessary in the interests of the public administration and the efficiency of the public service to attract the ablest of their officials serving in the Mofussil to this City by providing suitable house accommodation to them on easier terms than those prevailing in respect of house-rent. For that purpose Government desire to resume this and other lands, on the strength of the condition as to resumption abovementioned. Whether it is a public purpose or not must depend on the question whether the proper housing of its officials by Government is for the public benefit or' not. Section 39 of the Statute 21 & 22 Viet. Clause 106, (1858), by Section 1 of which the rule of the East India Company was terminated, enacted that 'all land &c.; moneys &c.; and other real and persona] estate' of the Company, 'subject to the debts and liabilities affecting the same', and 'the benefit of all contracts &c.; and all right to fines, penalties, and forfeitures, and all other emoluments, which the said Company shall be seized or possessed of, or entitled to', at the time of the commencement of the Act. 'except the capital stock of the Company and the dividend thereon, should become vested in Her Majesty, to be applied and disposed of', subject to the provisions of that Act, 'for the purposes of the Government of India'. All properly, belonging to the Company at the time the Act commenced, and the benefit of all contracts entered into by the Company and enforceable by it, became vested in the Crown for these latter purposes, which in essence are public purposes. The Government of India exists for the benefit of His Majesty's Indian subjects, and whatever conduces to that benefit must be a public purpose. That benefit can be secured primarily only by an efficient administration, which means an efficient service. Such service must depend on the efficiency of the men who are appointed to carry out the purposes of the Government of India, and who are, therefore, the servants of the Crown. If a state of things comes about, which shows that, in a City like Bombay, the best men available from among these servants are reluctant to serve because of the increasing hardness of life in point of house accommodation and house-rents, the Government is entitled to say that that raises a serious question as to the future of the public administration, and that the public benefit must suffer, if the best officer available are compelled to serve as servants of the Crown in the City under such hard conditions. It is no reasonable answer to that consideration that the men are bound to serve wherever they are appointed, because Government never engaged to provide them with house accommodation on more or less easy terms. It is true Government is not bound in that respect-; but the question is not one of legal obligation, but of general expediency and public benefit. And in this connection it is a material circumstance, disclosed by the Civil List, that it has been in this country customary for Government to provide house allowance to its officials, where that is in its opinion, necessary in the interests of the public service.

3. In substance there can be no difference between house allowance and house accommodation.

4. There is no definition of 'public purpose' in any of our legislative enactments, to afford us a clue to the meaning of the term, save that in the Land Acquisition Act ; but that is a partially inclusive, not exhaustive definition. Though the Legislature has not defined it for general purposes, it has given us sufficient indication in the Laud Acquisition Act of what it intended the term should convey, having regard to the constitution and objects of Government in and the special needs of this country. By Clause 3 of Section 6 of the Act, the Legislature has directed that a declaration by Government that a certain land 'is needed for a public purpose' shall be 'conclusive evidence' that it is so needed. What could have been the object of the Legislature in making Government the sole judge of what is a public purpose under the Act but this that, having regard to the conditions in this country, the needs of sound administration, and the public weal, it should not be hampered by any refined distinctions and legal subtleties, but must be left to interpret the expression 'public purpose' in a wise and reasonably liberal spirit. Though, strictly speaking, this rule of the Legislature does not bind the Court, in interpreting the expression where, as in the present case, it occurs in a contract, yet the Court may well take the Legislature as its guide in ascertaining the meaning of the expression. It was conceded by Mr. Setalvad for the appellant that if Government had sought to acquire this very land under the Land Acquisition Act, on the ground that it was needed for building a house for the residence of its servants, he could not have quarreled with the declaration that the land was needed for a public purpose. In that case he could not have fairly argued that Government was endeavoring to acquire the land merely for a private benefit --the benefit to an individual or individuals--in the guise of a public purpose. If that is so, why should the Court treat this case on different considerations, if, on the proved facts, it finds that the purpose, for which Government claims to resume the land, involves, in its opinion, the element of public benefit and, therefore, of public purpose, understanding that expression to mean any object which secures the good of the public by securing the efficiency of those servants of the Crown on whose service the public good materially depends? The Court would under these circumstances defer to the declaration of the Government on the analogy of the Land Acquisition Act, unless the purpose stated was so flagrant as to involve, on no reasonable consideration, the element of public benefit.

5. It was said, however, that the element of public purpose, such as it is, must be held to vanish in view of the fact that Government intended to charge rent to the official, who would be housed in the building proposed to be erected on this land after resumption. This charging of rent, it is urged, will bring pecuniary benefit to Government, and the building will . be occupied by the official who will pay the rent, not solely or exclusively in his capacity as a servant of the Crown. A similar argument was urged in this Court in The University of Bombay v. The Municipal Commissioner for the City of Bombay ILR (1891) 16 Bom. 217. The question there was whether the University of Bombay was an institution for a charitable purpose and, therefore, entitled to exemption from Municipal taxes. It was argued for the Municipality that the University was not an institution of that character, and, therefore, not entitled to exemption, because it 'obtained an income from the fees paid by the students on the occasions of the Examinations held by the University' and that 'it derived a revenue from the occupation of the buildings.' In the judgment of this Court Sargent C. J. disposed of the argument by pointing out that 'the sole test' under the Bombay Municipal Act was whether the building of the University 'was exclusively occupied for a charitable purpose;' 'and the mere circumstance, that small fees are required from the students before examining them which produce a revenue insufficient to defray the expenses of the University in conducting those examinations and keeping up the necessary establishment and which requires to be considerably supplemented by Government, cannot, in our opinion, alter the essential character of the purpose for which the buildings are occupied.' So also, in the present case, the sole test under the lease, which we are construing, is, whether the building proposed to be erected on the land in dispute after resumption by Government is for 'any public purpose.' If the element of that purpose exists, the mere fact that Government will charge a moderate rent, not such rent as the letting value of the property will yield in the market, cannot alter the essential character of the building as one used for a purpose

6. In this connection it is to be remarked as a circumstance of some importance that the expression used in the lease is not 'a public purpose,' but 'any public purpose.'the word 'any,' used to qualify the public purpose, must have, in my opinion, been used designedly to make clear the intention of the lease that Government should be entitled to resume the land whenever any consideration or need of public benefit, of any kind, arises, though it may involve at the same time some private benefit.

7. In arriving at this conclusion, I have not overlooked the meaning of the expression 'public purpose' given in Moses v. Marsland [1901] 1 K. B. 668. There, relying on the authority of Josolyne v. Meeson (1885) 53 L. T. 319, Bruce J. said that 'a place used for public purposes means, not a place used in the public interest, but a place to which the public can demand admission or to which they are invite to come.'' The learned Judge would appear to have intended that as the colloquial and general meaning independently of its meaning in the particular statute which he had to construe. Apart from the fact that the decision in Moses v. Marsland proceeds on the construction of that statute and on the principle of ejusdem generis, and that the observation of Bruce J. is so far an obiter dictum, a reference to Joselyne v. Meeson, on which Bruce J. and Phillimore J. relied, shows that in this latter case the meaning of the expression 'public purpose' went on its limited construction as used in an English statute and on the rule of ejusdem generis.

8. On these grounds, in my opinion, the decree appealed from must be affirmed with costs.

9. Our decision in appeal No. 24 of 1910 governs also appeal No. 25 of 1910. In this latter appeal two additional points were sought to be urged by Mr. Setalvad for the appellant at the hearing. The first was that there had been no legal notice of the intention of Government to resume the land, because the actual notice given had been addressed to the lessee after he had died and not to his executors. The executors, however, received the notice and replied to it, and therefore such irregularity as there was cured by waiver on their part. The second objection was that Government claimed in the plaint a strip of land belonging to the lessee which was not covered by the grant to him. The Advocate General for the Government having explained the facts with reference to this point, Mr. Setalvad admitted that he had urged it under a misapprehension. The decree in this appeal too must be confirmed with costs.

Batchelor, J.

10. By a lease executed on the 18th April 1854 the East India Company demised the land in suit to the defendant's predecessor-in-title for a term of ninety-nine years at a yearly rent of Rs. 11-2-3, term being renewable indefinitely on certain prescribed conditions. But the lease contains a clause declaring 'that in case the said Company, their successors or assigns shall for any public purpose be at any time desirous to resume possession of the premises...then and from thenceforth it shall be lawful to and for the said Company, their successors or assigns into and upon the said hereby demised premises, or any part thereof in the name of the whole, to re-enter, and the same to have again, repossess and enjoy as in their first and former estate.'

11. On the 16th October 1908 the defendant was served with a notice from the Collector of Bombay informing her that the plaintiff, the Secretary of State for India in Council, was desirous to resume possession of the land for a public purpose, and calling upon her to surrender possession on the 18th April 1909, the plaintiff undertaking to pay for all buildings and improvements on the land on a fair valuation. The defendant, however, declined to surrender possession, and this suit is brought to eject her. Mr. Justice Beaman, before whom the suit was tried, decreed in favour of the plaintiff, and against that decree the defendant brings the present appeal.

The only question raised is whether the purpose of Government in seeking to resume this land is a 'public purpose' within the meaning of that clause in the lease which 1 have cited; if it is a public purpose, then admittedly the suit must be decreed.

12. Now upon the question of fact as to what is the purpose of Government, there is no dispute. In para. 5 of the plaint it is stated compendiously as being 'the purpose of providing accommodation for Government officers.' Stated more fully, the case for the plaintiff is this: owing to certain economic conditions of life in Bombay, notably owing to the heavy house rents there prevailing, Government are embarrassed in their selection of officers to fill public appointments in this City; instead of having the entire cadre of their officers as the field of choice, they are driven to restrict their selection to a smaller group of officers, who, as bachelors or as having private means or otherwise, are enabled to meet the additional expenses incurred by living in Bombay. The purpose now actuating Government is to remove this embarrassment by resuming the land in suit and other land held on similar tenure, and by building on it houses to be leased to their resident officers at rents bearing a reasonable proportion to the officers' salaries.

13. The accuracy of this description of the purpose of Government has not been challenged before us, and sufficient proof of it will be found in the evidence of Mr. W. Cameron, the Secretary to Government in the Public Works Department. That gentleman, speaking on behalf of Government,' says, 'Our selection is much cramped in existing circumstances because good men whom I would like to recommend, are not able to serve here. I have always to consider whether the officer can afford to serve in Bombay. House rent, say Rs. 150 in Poona, would be Rs. 400 in Bombay; and Poona is next (i. e., the next most expensive place) after Bombay.' He clinches this evidence by an instance from his own personal experience, narrating that in 1900 he had to decline an offer to serve in Bombay as he could not afford the extra expense.

14. On the question of fact, then, I need not say more. The purpose of Government in attempting to resume this land is as I have described it. The question is : is that a 'public purpose' within the meaning of the lease? I am of opinion that it is, but before explaining the grounds of my opinion it will be convenient to consider certain English decisions which the defendant claims as authorities for the view that the purpose of Government, being as I have described it, is not a 'public purpose.'the decisions referred to are; Gambier v. Overseers of Lydford (1854) 3 E. & B. 346; Martin v. Assessment Committee of West Derby (1883) 11 Q. B. D. 145; Showers v. Assessment Committee of Chelmsford Union [1891] 1 Q. B. 339 and Jones v. The Mersey Docks (1864) 11 H. L. C. 443. I have set out these cases en bloc because I do not think they demand separate consideration here. I will accept Mr. Setalvad's position that, despite the actual decision in Jones' case the learned Judges' discussions of the phrase 'public purposes' in the earlier cases remain unaffected as indications of the meaning which that phrase was construed to bear ; but even so I cannot bring myself to understand how those discussions can possibly assist the Court in the very different controversy which has now to be determined. Indeed the very reference to these cases is, I cannot but think, an illustration of a practice which in Quinn v. Leathem [1901] A. C. 495 elicited from the Earl of Halsbury, L. C, the following protest:--'There are,' said his Lordship, 'two observations... which I wish to make, and one is ... that every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.' In the case before us I cannot see that there is even an appearance of logical connation between the 'public purposes' of the cases decided under a particular English rating statute and the 'public purposes' of the lease of land in Bombay in 1854. For the only 'public purposes' with which the English Courts were concerned were purposes sufficient to negative such beneficial occupation as would under the Statute of Elizabeth attract the liability to rating. So, the only question decided in those cases was the question whether a particular occupation was ratable, and the cases cannot properly be quoted as authority for more than was decided. I could understand the relevance of an appeal to those decisions if, the contemplated houses being supposed to be built and the English statute being supposed to be law in Bombay, the question were whether the houses would be exempt or ratable; and I am prepared to grant that, on these suppositions, the houses would be ratable Neither that, however, nor anything like it is, I conceive, the question now before the Court. And if the point need further elaboration, I would adopt the Advocate General's illustrative instance. Under the lease in suit Government, I suppose, could certainly resume the land for the purpose of building, say, a public school, or a Fire Brigade Station ; yet both of these institutions would be ratable under the English statute. It would seem to follow, therefore, that the 'public purposes' of the Indian lease are wider than the 'public purposes' considered in the English cases in contrast with beneficial occupation. I would add that, in seeking to apply the decisions of the English Courts in such a case as this, there is some danger of overlooking an essential feature of difference, I mean the difference in the position of a Government in England from the position of an Indian Government with its more direct and constant relations with the general community, and its necessarily more active interference in the affairs of the people. On the whole, then, I am unable to recognize that the English decisions quoted can be referred to as guides for the interpretation of the words of the present lease.

15. If that is so, and if this lease is to be construed from its own language, then I cannot doubt that Beaman J. 's decision is right. General definitions are, I think, rather to be avoided where the avoidance is possible, and I make no attempt to define precisely the extent of the phrase 'public purposes' in the lease ; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose, that is, an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned. That it is so concerned here, must, I think, be plain to any one familiar with the relations between an Indian Government and its subjects, the innumerable points at which those relations are close and direct, and the multifarious ness of the duties for whose discharge the community looks to Government and the officers of Government. Here, therefore, it is especially necessary in the interests of the public that Government should be able to appoint to posts in the capital City those officials who, they are satisfied, are most competent to fill such appointments. It is directly to the gain and advantage of the public that, on an appointment falling vacant, the inquiry by Government should be, who is most capable of filling the vacancy, and not, who can best afford the expense of filling it.

16. The validity of these considerations is denied by Mr. Setalvad, who replies that they would justify the resumption of the land for the purpose, say, of building a gymkhana for Government officials in order to preserve their health and efficiency; yet such a purpose, he contends, would certainly not be a public purpose within the lease. To that I can only answer, first, that hypothetical cases are best postponed for decision until they have ceased to be hypothetical; and, secondly, that, assuming the gymkhana would not be a public purpose, there is surely a rather obvious distinction between a place of recreation and a house to live in--the former may be conducive to good work, but the latter is a condition precedent to all work.

17. The same result is reached if we consider that the provision of house accommodation does not, for our present purposes, materially differ from the grant of a local allowance to cover the heavy charges on account of rent in Bombay. Yet I cannot see how it could be contended that such an allowance, if made, was not made for a public purpose. Again, on the proved and admitted facts, we have it that there are not now in Bombay enough suitable houses for the number of officials whom it is necessary to post here. Unsuitable houses may exist, but for the purposes of the argument, they are equivalent to no houses, a proposition which I merely state in passing since it has not been suggested before us that the officers of Government should be relegated to such houses as could at present be found for their occupation. The case, therefore, is as if Government were proposing to build for officers necessarily stationed in Bombay houses where no houses existed before, and it seems to me certain that that would be a public purpose. It would be as much a public purpose as the purpose or object of the officers' appointments.

18. For these reasons I am of opinion that the decree under appeal is right, and I agree that the appeal should be dismissed with costs.

19. I agree also with what my learned colleague has said in decision of the related appeal. The point as to notice is clearly without substance, and the other point as to the strip of land was abandoned. No other point was taken before us.

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