1. In this case the question arises upon what is proposed to be done by the Municipality of Bombay in connection with a projected improvement of a public street. The Municipality propose in improving a certain street, not only to widen it, but to take a certain amount of extra ground contiguous to, but beyond, the actual limits of the widened street, with the avowed intention of erecting new buildings thereon and afterwards re-selling the laud with the buildings upon it. The powers of the Municipality with regard to this matter are dealt with in Section 296 of the City of Bombay Municipal Act, 1888. which is as follows:--
(1) The Commissioner may, subject to the provisions of Sub-section 90, 91 and 92--(a) acquire any land required for the purpose of opening, widening, extending or otherwise improving any public street or of making any new public street, and the builidings, if any, standing upon such land; (b) acquire, in addition to the said land and the buildings, if any, standing thereupon, all such land, with the buildings, if any, standing thereupon, as it shall seem expedient for the corporation to acquire outside of the regular line, or of the intended regular line, of such street; (c) lease, sell, or otherwise dispose of any land or building purchased under Clause (d).
2. Reference has been made to certain cases, but it is perfectly clear that in cases of this sort each must be determined upon its own circumstances, and its circumstances consist first and foremost of the precise terms of the Act in question and, secondly, of the thing which is proposed to be done. In one sense no other case is an authority; but at the same time certain principles have been very clearly laid down by this Board in the case of Calcutta Improvement Trustees v. Chandra, Kanta Ghosh. . In that case what was proposed to be done was similar to what is proposed to be done in the present case, that is to say, the land was going to be acquired for the purposes of future sale and, if prices realised their expectancy, part of the expense to which the municipality had been put would be recouped. Section 42 of the Calcutta Improvement Act, 1911, provided:--
Any improvement scheme may provide for--(a) the acquisition by the Board of any laud, in the area comprised in the scheme, which will, in their opinion, be affected by the execution of the scheme .
3. Lord Parmoor, in delivering the judgment of their Lordships, ways this at page 53:--
It is not immaterial to observe that there was at the date of the passing of the Calcutta Improvement Act no novelty in the recoupment principle.
4. Then he cites Galloway v. Mayor and Commonalty of London (1866) L.R. 1. H.L. 34. and continues:--
But whether this principle has been sanctioned in the Calcutta Improvement Act must be determined on the language used, and the case of Donaldson y. South shields Corporation (1899) 79 L.T. 685; 68 L.J.Ch.162., shows, if authority is necessary, that where an Act authorises land to be taken for the actual works only, a local authority, or other public body, will be restrained from taking more than is actually necessary for such works.
5. Their Lordships have no doubt that that is the correct principle. One, therefore, has to find in the Act something more than the mere possibility of acquiring land for the purposes of the improvement where it is proposed to do what is proposed to be done in this case. When their Lordships come to this Act they find that the case is a fortiori of the Calcutta case. It appears to their Lordships that it is clear beyond all doubt, not only that the Municipality may acquire land for the purpose of making a street but that they may acquire, if it seems expedient, land outside the regular line of such street. If the matter had ended there it might have been said that the land outside the street was only meant to form an appendage to such street but then comes Clause (c) which says: that they may 'lease, sell, or otherwise dispose of any land or building purchased under Clause (b).' This seems to their Lordships to point to recoupment with almost the greatest certainty that could be expressed in words. The powers no doubt are drastic, but they are not altogether untrammelled, because when Section 91, which is one of the sections to which Section 296 is subject, is looked at, it is found that if the Commissioner is unable to acquire any property by agreement Government may in their discretion upon the application of the Commissioner made with the approval of the Standing Committee order proceedings to be taken for compulsory acquirement; so that in the discretionary power of the Government would always be found a certain limitation over and above the limitation which their Lordships think necessarily follows from the fact that what is done must be done in the course of making or widening the street for it appears to their Lordships that the municipality certainly could not take land which was not in contiguity. Their Lordships think that this result would follow notwithstanding any of the somewhat more vague words which are used in the earlier sections of the Act.
6. In these circumstances their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.