Norman Macleod, Kt., C.J.
1. Since the year 1913 the Municipal Corporation of Bombay, hereinafter called ' the Corporation,' have been considering the question of the development of the Mahim District by the laying out and widening of roads and by the provision of open spaces for the use and recreation of the inhabitants of the District and of the City in general.
2. At a meeting of the Corporation held on the 30th July 1920 the following resolution was carried :
That the 71st report dated the 28th February 1920 of the Roads Committee reconstituted by Corporation Resolution No. 175 dated the 3rd April 1919 regarding the acquisition of frontages in connection with (1) the proposed extension of De Lisle Road northwards to Lady Jamsetji Road and (2) the widening of Lady Jamsetji Road to Bandra Causeway be approved and adopted and a copy be forwarded to the Commissioner for information and necessary action. (2) That certain letters received from various associations on the subject be recorded.
3. The 71st Report of the Roads Committee referred to Resolution No. 5859, dated the 23rd November 1918, under which the Corporation had approved of the two projects in question as a part of the Mahim Development Scheme, as well as the acquisition of frontages in such cases to the extent of about 100 feet.
4. The Corporation, therefore, proposed to acquire not only the actual land required for the extension of De Lisle Road and the widening of Lady Jamsetji Road, but also the land which would abut on the new road and the old road when widened, to the depth of about 100 feet. It is admitted that the object of such acquisition was to recoup a portion, if not the whole, of the expenditure to be incurred in making and widening the roads named, by the re-sale of the frontages.
5. In anticipation of the adoption of the 7lst Report of the Roads Committee, the Executive Engineer of the Corporation, on the 15th March 1920, served notices on the land-owners concerned to treat for the purchase of the lands which the Corporation desired to acquire.
6. On the 31st August 1920, the plaintiff, one of the persons upon whom such a notice had been served, obtained leave to file a suit on behalf of himself and other members of the Mahim Landowners' Association, similarly situated as the plaintiff against the Corporation and the 'Municipal Commissioner. This suit was accordingly filed the same day.
7. The plaintiff claimed that the defendants had no right to acquire from the plaintiff and from other land-owners similarly situated any portion of his or their property for the purpose of by resale recouping the expenses of constructing and widening roads and that under the Municipal Act the defendants had power to acquire lands only if the same were required for constructing a new road or for widening or otherwise improving a road. The plaintiff believed that the second defendant was about to apply to the Government under Section 91 of the City of Bombay Municipal Act to acquire the plaintiff's land and portions of the land of other land- owners similarly situated not wanted for the actual extension of the De Lisle Road northward to Lady Jamsetjee Road and the widening of Lady Jamsetjee Road to the Bandra Causeway.
8. The plaintiff submitted that the defendants had threatened to invade the plaintiff's right to the property and the right of other landowner members of the Mahim Landowners' Association similarly situated to their properties. The plaintiff, therefore, prayed for a declaration that the defendants were not entitled to take more land than was required for the purpose of the roadway and for an injunction restraining the defendants from proceeding on the notices served on himself and the other members of the Association similarly situated.
9. In their written statement the defendants pleaded that by reason of the provisions of the City of Bombay Municipal Act III of 1888 they had power to acquire all the lands in respect of which notices had been given. As regards such of the said lands as were outside the regular line or the intended regular line of the streets referred to in the plaint it had seemed and did seem expedient to the first defendants for the Corporation to acquire such lands in pursuance of the power conferred upon them in that behalf by Section 296 of the said Act. The first defendants had exercised their judgment under the said sections and it was not alleged that they had not exercised it honestly and therefore their decision was not open to review by the Court. The defendants admitted that, on the 14th September 1920, a letter had been addressed by the second defendant to the Chief Secretary to the Revenue Department of Government through the Collector of Bombay applying to Government for the acquisition of inter alia the plaintiff's property and requesting Government to issue the requisite Notification under the Land Acquisition Act.
10. The only issue in the case is whether the Corporation are entitled under the powers given them by Act III of 1888 to acquire more land than is necessary for the actual construction of a new road and the widening of an old road in order that by the resale of the surplus land they may recoup themselves for the expenses of construction and widening.
11. Chapter XI of the Act is intituled ' Regulation of Streets, Construction, Maintenance and Improvement of Public streets '. Section 296 deals with the power to acquire premises for the improvement of public streets. It runs as follows :
(1) The Commissioner may, subject to the provisions of Sections 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 buildings, 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 (b) ;
(2) any conveyance of land of a building under Clause (c) may comprize such conditions as the Commissioner thinks fit, as to the removal of the existing building, the description of new building to be erected, the period within which such new building shall be completed, and other such matters.
12. Section 90 provides that whenever it is provided by this Act that the Commissioner may acquire, or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immoveable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement.
13. Section 91 provides that whenever the Commissioner is unable to acquire any immoveable property under Section 90 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 acquiring the same on behalf of the Corporation, as if such property were land needed for a public purpose within the meaning of the Land Acquisition Act.
14. Section 92 provides for the disposal of property belonging to the Corporation.
15. We have not been referred to any Act giving powers to a Corporation, or any public body of a similar nature to the first defendants, in which the powers of such corporation or other public body of acquiring land for the purposes of constructing new streets or improving old streets have been defined in the same terms as those of Section 296.
16. The cases cited, therefore, give us no assistance in construing Section 296. In Calcutta Improvement Trustees v. Chandra Kanta Ghosh their Lordships of the Privy Council at p. 49 said :
During the course of the argument the attention of their Lordships was directed to a number of decisions upon various Acts of Parliament giving a compulsory power for the acquisition of land, but in each case the decision must depend upon the provisions of the particular Act and the purposes for which and conditions under which in such Act land may be compulsorily acquired.
17. And at p. 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 : Galloway v. Mayor and Commonalty of London (1866) L.R. 1 H.L. 34. But whether this principle has been sanctioned in the Calcutta Improvement Act must be determined on the language used, and the case of donaldson v. South Shields Corporation (1899) 68 L.J. Ch, 162 shows, if authority is necessary, that where au 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 iH actually necessary for such works.
18. It was also argued that the word 'affected ' in Section 42 of the Calcutta Improvement Act ought to be read as meaning ' physically or injuriously affected.' Bat their Lordships said:
To introduce the limitations connoted by the word ' injuriously ' would be in effect to alter the language of the section, and, had the Legislature desired to introduce this limitation, there would have been no drafting difficulty of any kind.
19. In Galloway v. Mayor and Commonalty of London the Corporation had been given powers by the London City Improvement Act, 1847, Section 13, to take any house or land which they might deem it expedient to take for the purposes of the Act. Provided that without the consent of the owner they could not take any lands not included in the Schedule to the Act. The Court said at p. 45 :
Now, it must be observed that the Legislature, in providing for such an object as that of widening and improving the streets of the Metropolis, hag to deal with a subject totally different from that of enabling a body of adventurers to form a railway.... When they (the Mayor or Corporation of the city of London) have made a new or widened an old street, they will necessarily have incurred a very great expense for which they can get no return. The new or improved street, ..yields no profit to those by whom it has been made. In order to meet this difficulty, and to enable Corporations to reimburse themselves, the course has been to authorise them to take compulsorily, not only the buildings actually necessary for forming the Streets or other projected improvements, but also other neighbouring lands and buildings, the value of which, and the proper mode of dealing with which, the Legislature considers to be connected with and dependent upon the projected improvements.
20. The main question in the suit was whether the Corporation were entitled to sell lands to be included in the book of reference annexed to their Act before the Act was passed, the plaintiff contending that the Corporation was thereby acquiring the lands not for the purposes of the Act but for carrying out their agreement to resell them. It was not disputed that the Corporation could compulsorily acquire such of the scheduled lands as it might seem expedient to them to acquire.
21. In Act III of 1888 the Corporation have not been restricted to the aquisition of scheduled lands. That could have obviously Municipal been impossible. The only restriction which could be imposed was that if the land should he outside the regular or intended regular line of the street only so much could be acquired as it might seem expedient. It may, however, be as well to refer to the corresponding section of Bombay Act III of 1872, an Act to provide for the management of the Municipal affairs of the City of Bombay which was the principal Act repealed by Act III of 1888.
22. Section 157 of that Act provided that in laying out or making any new streets or in turning, diverting, widening, opening, enlarging or otherwise improving any public streets, in addition to the land required for the carriage ways, and footways thereof the Commissioner might, with the sanction of the Town Council, also purchase on their behalf the land necessary for the houses and buildings to form the said street and might, with the like sanction, sell and dispose of the same with such stipulation and condition as to the class and description of houses or buildings to be erected thereon as he should think fit. It is clear therefore, that under the Act of 1872 the Commissioner could, and under the present Act the Commissioner can, acquire land outside the regular line or of the intended regular line of a public street and sell the same with such conditions with regard to the description of new buildings to be erected thereon as may be considered fit. The wording of Section 296 makes it clear that the land can be sold without conditions. It might be argued, though I think the contention would be wrong, that under Section 157 of Act III of 1872 the Commissioner could not sell surplus land unless conditions were imposed. But it is contended for the plaintiffs that the words ' as it shall seem expedient' in Section 296 must be read ' as it shall seem expedient for the purpose of such street' and not ' as it shall seem expedient for the purpose of the Act' that if the Corporation thought it expedient that the houses abutting on the new street or widened street should be of a particular character it could acquire the frontages and resell them with conditions, but if the only object of acquiring the frontages was to recoup the expenses incurred in constructing or widening the street, that would not be an expediency for the purpose of the street and such acquisition could be beyond their lib powers.
23. By Section 67 of the Act the Corporation has power for the purposes of the Act to acquire and hold moveable and immoveable property whether within or without the limits of the Act, and the defendants contend that the Corporation can acquire the land in suit under the general powers given by Section 87, since recoupment of the road expenses would come within the of meaning of the words ' for the purpose of this Act'.
24. But it must be noted that in Section 90 a distinction is made between property which the Commissioner may acquire as provided by the Act and property which it is necessary or expedient for any purpose of the Act that the Commissioner should acquire, and Section 296 is the only section in the Act in which the same distinction is observed with regard to property to be acquired for a particular purpose.
25. Further, it is to be noted that Section 296 is the only section in the Act where the expression is used ' that the Commissioner may acquire land ' or where the word ' expedient' is used, so that the acquisition comes within the first part of Section 90.
26. Under Section 246 the Commissioner may, when authorised by the Corporation, purchase land for the disposal of sewage.
27. Under Section 261 the Commissioner may, when authorised by the Corporation, do any necessary Act for the purpose of providing the City with a supply of water. Sections 298 and 299 enable the Commissioner to take possession of land falling within the regular line of a street in the circumstances mentioned therein, and compensation for the land so required has to be assessed under Section 301.
28. Under Section 399 the Commissioner, when authorised by the Corporation, may purchase or lease land or buildings for markets, etc.
29. Under Section 436 the Commissioner shall, with the sanction of the Corporation, provide other fit and convenient places for the disposal of the dead when the existing places shall appear to be insufficient. It may be presumed that in all these cases the Corporation could have power to acquire the necessary property but it is only by implication that it could be said that in these cases the provisions of Section 90 would be applicable for in none of the above-mentioned sections is the word ' acquire ' used, except with reference to the land so purchased or taken possession oft nor is any reference made to Section 90.
30. Considering, therefore, that in Section 296 not only is special reference made to Section 90 but also the same distinction appears in that section between what may be acquired for a particular purpose and what it may seem expedient to acquire, it may be fairly assumed that under Section 296 it was intended that if it seemed expedient for the purposes of the Act for the Corporation to acquire additional land outside the regular line or of the intended regular line of the street, they could do so.
31. It has not been disputed that the Corporations in acquiring frontages to enable them by resale to recoup the expenses of constructing or widening a road would be acquiring the frontages for the purpose of the Act: see Calcutta Improvement Trustees v. Chandra Kanta Ghosh. It might very well be that unless they did so, projected improvements could not be carried out.
32. Section 157 of Act III of 1872 gave the Commissioner power to buy the land necessary for houses and buildings to form a street when laying out a new street or improving an old street. The power was not restricted to such streets the buildings abutting on which the Commissioner might desire to be of a particular character. The power was general whether the object was recoupment or the laying down of conditions for the character of the buildings. If, therefore, it was intended by the Act III of 1888 to limit the power of acquiring frontages which had previously been granted to the Commissioner to cases where the latter object was in view then I should have expected that such a limitation would have been prescribed in express terms. On the contrary the power is given to resell surplus land without any conditions. It may also be said that even if the laying down of conditions with regard to buildings was the main object in acquiring the frontages it would also result in most cases in a profit being realised by the resale of the land. It would be very difficult to separate the two, while unlimited opportunity would be afforded to arguments as to what was the dominant object for acquiring frontages.
33. Considering, therefore, the whole of Section 296 together with as. 90, 91 and 92 it seems to me that power has been given to the Commissioner to acquire frontages whenever it may seem expedient for the Corporation to acquire them, the only restriction on such powers being that the decision regarding the expediency must be arrived at honestly and on reasonable grounds. The plaintiff's suit must, therefore, be dismissed with costs.
34. The real issue in this suit is whether Section 296(1)(6) of the City of Bombay Municipal Act, 1888, empowers the defendant Commissioner to acquire lands lying outside the alignment of the proposed new or improved street for the mere purpose of ' recoupment '.
35. It was not disputed that the language of this Clause (b) is wide enough to give such a power, but it was contended that it should be construed as limited only to the acquisition of additional land and buildings required either (1) for acquiring of Bombay the whole of a house or building that would otherwise be severed, or (2) for improving the public street by giving the Commissioner effective control over the buildings erected on each side of it.
36. The first of these limitations can scarcely have been intended by the Legislature, for Clause (b) would be superfluous for the purpose. Under Sections 87, 90 and 91 of the Act, the Commissioner would have power to acquire the additional buildings as being necessary for the purpose of obtaining the land required under Clause (a); also, if it was intended that Clause (b) should be limited to this particular purpose, it is unlikely that this would not have been clearly shown, instead of drafting the clause so widely as it is. A similar contention in regard to Section 42 of the Calcutta Improvement Act, 1911, was rejected by the Privy Council in Trustees for the improvement of Calcutta, v. Chandra Kanta Ghosh I.L.R. (1919) Cal, 500 : 22 Bom. L.R. 586, p. c. An additional argument against the suggested limitation is furnished by the language of the corresponding Section 157 in the previous Municipal Act, Bombay Act III of 1872. This enabled the Commissioner to purchase also ' the land necessary for the houses and buildings to form the said street,' and provided for compensation for damage to ' any adjoining land or buildings ' of the owner of the land taken. Clause (b) of Section 296 of the present Act is wider in its language as to the additional land and buildings which may be acquired, and it is almost inconceivable that it was intended to restrict the powers given by this Section 296 to a case of severance, such as is referred to in the proviso to Section 157 of the previous Act.
37. The second suggested limitation is one which would perhaps be supported, if this Clause (b) was limited in the same way as the corresponding part of Section 157 of Bombay Act III of 1872, but, as already remarked, it is much wider. It seems to me that the probabilities are that it was purposely made wider, in order to leave no doubt that lands and buildings might be acquired for the purpose of ' recoupment.' It is significant in this connection that the words ' as it shall seem expedient for the Corporation to acquire ' follow very closely this wording of Section 18 of the London City Improvement Act, 1847(otherwise known as the Model Act) which, as stated in the leading case of Galloway v. Mayor and Commonalty of London (1866) L.R. 1 H.L. 34, 45, empowered the Mayor and Corporation to take any house or land which they might deem it expedient to take for the purposes of the Act. That such a power covered the acquisition of scheduled lands and buildings for the mere purpose of ' recoupment ' had been established in 1866 by Galloway's case; and the English Legislature had conferred this power of ' recoupment ' on various Municipal and other public bodies in connection with street improvement schemes. I think, therefore, that it is in accordance with probabilities that the Legislature intended to confer a similar power on the Corporation, in enacting Clauses (b) and (c) of Section 296. The argument that the true limit in such a case is to be discovered by ascertaining what lands are necessary for enabling suitable houses or buildings to be erected along the Bides of the new street, was described by Lord Cranworth in Galloway's case as ' an arbitrary and fanciful limitation, not justified by anything to be found in the Act ' (i. e., the Model Act). I think this applies equally to the Municipal Act, especially in view of the change of language from Section 157 of the former Act. Such a change would have been quite unnecessary, if this had been the real intention.
38. The fact that in Galloway's case the lands to be acquired were scheduled in the Act itself does not, in my opinion, suffice to differentiate the present case. The Legislature has chosen to trust the Corporation to exercise its power under Section 296 in a reasonable manner, and before there can be a compulsory acquisition of land or buildings under Section 293(I)(b) the Commissioner has under Section 91 to obtain the approval of the Standing Committee and Government There is, in my opinion, clear authority for our holding that the acquisition of lands and buildings adjacent to, though outside, the actual road-way of a new or widened street, for the mere purpose of recoupment is legitimate and authorized under such an enactment as that now being considered. In the recent case of Trustees for the Improvement of Calcutta v. Chandra Kanta Ghosh I.L.R. (1919) Cal. 500 : 22 Bom. L.R. 586, p. c, tm, already referred to, the Privy Council declined to read in the word ' injuriously ' before ' affected' in Section 42 of Bengal Act V of 1911, on the ground that this ' would be in effect to alter the language of the section, and, had the Legislature desired to introduce this limitation, there would have been no drafting difficulty of any kind.' The same remark applies to the suggestion that we should read in some such words as ' for the purpose of obtaining suitable buildings on the sides of the street' in this Clause (6) of Section 296 of Bombay Act III of 1888.
39. As the authorization of such recoupment in connection with a of Bombay street improvement scheme was nothing novel at the time of its enactment, and the natural place for conferring the power to acquire and sell lands for this purpose, was in the part of the Statute dealing with the ' Construction, Maintenance and Improvement of Public Streets', I can see no force in the argument that such a provision should have appeared in the 'Financial' rather than the ' Engineering ' part of the Act.
40. Except Galloway'8 case, I do not think any of the English cases cited to us help to the proper construction of Section 296(1)(b). As remarked by the Privy Council in the Calcutta Improvement Trust case (1919) I.R. 47 Cal. 500 : 122 Bom. L. R, 586, ' in each case the decision must depend upon the provisions of the particular Act and the purposes for which and conditions under which in such Act land may be compulsorily acquired.' See also the similar remarks in the same case when under appeal to the Calcutta High Court (I.L.R. 44 Cal. 218, 219, 254, 255).
41. The corresponding provisions in Section 357(2) of the Calcutta Municipal Act, 1899 and Section 232(2) of the Madras City Municipal Act, 1904, cannot of course be used as an aid to the construction of Section 296(1)(b) of the City of Bombay Municipal Act, 1888 : but they maybe mentioned as indirectly lending some support to the view I have taken above. Each of these provisions contains a proviso enabling the Corporation to recover a special payment for 'betterment' as an alternative to acquiring the additional lands or buildings referred to. This shows pretty plainly that the Bengal and Madras Legislatures at any rate consider a right of acquisition for the purpose of recoupment to be conferred in such cases. I, therefore, agree that the plaintiffs' suit should be dismissed with costs.