W. Comer Petheram, C.J.
1. The facts out of which this question arises are so fully stated by the learned Judge in the Court below that I need not relate them here.
2. I do not think it necessary to express an opinion as to whether the resolution of the Commissioners of the 26th of January 1883 and the report of the medical men submitted in pursuance of it constituted a 'proceeding pending' within the meaning of Section 2 of Act II of 1888, because I think that even if it were, and so must be deemed to have been commenced under the new Act, the subsequent proceedings were not in accordance with the new Act, and as the old Act was not in force when they were taken, the Municipality had no power by virtue of its provisions to deal with the plaintiffs' land, and that in doing so they committed a trespass.
3. All that Section 2 provides is that pending proceedings which may have been commenced under any repealed Act shall be deemed to have been commenced under the new one, but though commenced before the passing of the new Act, they must, to be effectual, be continued under its provisions and can only be used to enforce rights and powers in existence at the time when it is sought to enforce them.
4. By Sections 280, 281, 282 of Act IV of 1876 the Commissioners were empowered when they were satisfied that there was a risk of disease from the condition of an existing block of huts to call for a medical report, and to take steps upon it, with a view to the removal of the risk. The power to take steps for the sole purpose of removing the risk of disease in any existing block of buildings is not given by the new Act, and clearly the power given by the old one is taken away by its repeal, but in place of it an entirely new scheme for attaining what is practically the same end is provided by Part III of Chapter X of the Act (Sections 247 to 270). All these sections, except Section 270, contemplate that whatever is done, whether it is done by the owners on the requisition of the Commissioners, or by the Commissioners themselves, under the powers created by the Act, shall be part of an entire scheme, under which the whole basti in which the works are to be done, shall be remodelled. Sections 257-264 deal with the case of a basti in which the huts are in an unhealthy condition, and provide that in such cases the Commissioners may call for a medical report, but the report must be accompanied by a standard plan dealing with the whole basti, and must indicate what portion of the work it is necessary to undertake at once in order to remove or abate the unhealthy condition of the basti, and if, and when the Commissioners have approved the entire scheme, they may take immediate steps to carry out the works so necessary, and after this has been done, may cause the rest of the scheme to be carried out under the earlier sections, and when the whole has been done the basti is to be deemed a remodelled basti, in the same way as it would have been if the whole of the proceedings had been under those earlier sections. The only other power of interference given to the Commissioners is that contained in Section 270 by which they are empowered under some circumstances to cleanse a basti which is in a filthy condition, and to recover the costs from the occupiers. It is evident that none of these sections contain powers at all similar to those contained in Sections 280 et seqq. of the repealed Act, but only empower them to remodel the basti if it is in an insanitary condition or to cleanse it if it is filthy. What they have done in the present case is neither one nor the other of these things, as they have merely widened the road in a portion of the basti under a medical report such as is contemplated by the old Act, and which is not accompanied by anything in the nature of a plan for remodelling the entire basti, a work which would not prevent them from taking steps at any time to cause the entire basti to be remodelled under the powers of Section 252 and the following sections, and to remodel it in such a way as to render all the work which has been done in widening these roads wholly useless. For these reasons I agree with the learned Judge in the Court below that the defendants were not justified in entering upon the plaintiffs' land and making new roads upon it, and that in doing so they committed a, trespass for which the plaintiff's are entitled to recover damages. The plaintiffs are entitled for the reasons which I have given to a declaration that notwithstanding what has happened the land in respect of which the action has been brought is still their property, but not to an injunction, and the only other question is what is the measure of the damages to which they are entitled. The only evidence which is relied upon as evidence of damage which appears on this record is the evidence of the value of the land upon which the new roadway has been constructed, and the learned Judge has given judgment for what he finds to be its full value, on the ground that by the wrong which they have done the defendants have so effectually ousted the plaintiffs from the possession of their property that they can never regain it. In this view I am unable to agree. As I have said before I think the action of the defendants in making the road upon the plaintiffs' land was illegal and a trespass, and by such an act they could acquire no right to retain possession of the land trespassed upon as against the owners, and even if they had acted strictly within their rights the property in the land would still have remained vested in the plaintiff's under the provisions of Section 265 of the Act, so that the question is, what damages have they sustained by what the defendants have done upon the slip of land which still remains their property.
5. No evidence has been given that what has been done to the land renders it more unfit for the purpose of building huts upon it, nor of what it would cost to restore the land to the same condition in which it was before the alteration was made. Under these circumstances the damages must be merely nominal as no evidence of any actual damage has been given, and the amount decreed must be reduced to Rs. 20: but inasmuch as I think the plaintiffs are also entitled to a declaration of their title to the land they will retain their costs as awarded to them in the lower Court, and the decree will be modified to this extent. In this Court each party will pay their own costs on scale No. 2, including the costs of the application to add a fresh ground of appeal. This judgment will be dated as of the 18th of January 1894, being the last day of the hearing.
6. I am of the same opinion. Section 281 of the Act of 1876 is no doubt identical with Section 252 of the Act of 1888, which by a repeal of the Act of 1876 replaces it, but Section 252 contemplates either a standard plan for remodelling a basti by which all necessary improvements can be made, or by giving effect to some portion of that plan forthwith on an emergency such as set forth in the first part of Section 257 being found to exist. The act of 1876 does not contemplate the finality which would be the result of a basti remodelled under the Act of 1883. In order, therefore, to enable the Commissioners acting under the Act of 1888 to give effect to anything commenced under the Act of 1876, there must be some emergency of the nature stated in Section 257. But having regard to the great length of time which has passed since it was under contemplation to take measures for the sanitary improvement of Raja Bagan, it cannot now be reasonably said that this is a matter of any emergency requiring a departure from the ordinary course. If this be so, the only course to bring the matter under the Act of 1888 is on a plan to remodel the basti. This was at one time contemplated, and it so appears from the report of the medical officers appointed to consider the state of the locality. But the subsequent proceedings taken refusing to adopt this report, except in one particular, shows that there was no standard plan accepted.
7. It is unnecessary that I should refer to the other points raised on this appeal, because I agree in the judgment of the learned Chief Justice.
8. I agree in thinking that the action of the Municipality amounted to a trespass.
9. The procedure under which the Commissioners were acting when the new Act came into force was of a kind wholly different from that provided under the new Act. The old Act was repealed, so the old procedure could not be continued. In its place there were substituted two systems, the one providing for remodelling bastis according to a standard plan, the other giving in Section 257, and the following sections, a more peremptory procedure. These sections provide for more urgent cases, there being also in that case a standard plan.
10. After the repeal of the old Act, the action taken by the Municipality before the new Act came into force became fruitless unless the saving clause of Section 2 can be held to be applicable.
11. That section provides that all proceedings pending at the commencement of the Act, which may have been commenced under the former Act, shall be deemed to have been commenced under the new Act.
12. Some argument was addressed to us as to the meaning of 'proceedings' in this section, and it was contended that they referred only to proceedings in Courts of law. The use of the same word in Sections 57, 58, 64, 6(i, and 67 on the Act would rather point to another construction of the section, but this question need not be decided in this case. For the purposes of argument, we may assume that what had been here done before the new Act came into force amounted to 'proceedings' within the meaning of Section 2 of the new Act. They could only have been continued under the new Act, if they had been such as could have appropriately been worked from the beginning under the new Act,
13. At the time the new Act came into force the report contemplated by Section 280 of the old Act had been referred by the Dasti Committee to the Commissioners in meeting and nothing more had been done.
14. On the 4th of April 1889, i.e., after the new Act came into force, the Commissioners made an order under Section 258 of the new Act and thereafter purported to proceed under Section 259 of the new Act.
15. Section 258 depends upon Section 257. That section only applies when the Commissioners in meeting consider that the procedure provided by Sections 252 to 256 will be too dilatory. Nothing of the kind took place here. The omission of this necessary preliminary prevents the application of the summary procedure provided in these sections. There was also no standard plan of the kind provided for in Section 257 of the new Act. The matters which were necessary preliminaries to Section 258 having any operation having been omitted, I think that Section 258 had no application to these proceedings, and that the action which the Municipality purported to take under those sections was illegal.
16. I may remark that the procedure under Section 257, etc., is intended to provide a summary and quick remedy for evils requiring urgent attention. In this case from beginning to end the Municipality expended about 3 1/2 years in this matter.
17. I agree in the decree referred to in the Chief Justice's judgment.