Judgement

Appeals from two decrees of the High Court (September 5, 1911) affirming decrees of Beaman J. (April 11, 1910).

67 Law Rep. 42 Ind. App. 44 ( 1914- 1915)

Hamabai Framjee Petit V. Secretary of State 168

The appeals depended upon the determination of substantially the same question and were heard together.

The suits were instituted by the respondent in the High Court to recover possession of certain lands situated upon Malabar Hill, Bombay. The land in suit in the first appeal had been leased by the East India Company in 1854 for a term of ninety-nine years with a proviso that " in case the said Company shall for any public purpose be at any time desirous to resume possession of the premises" they should be at liberty to re-enter, subject to giving the notice and compensation thereby provided.

The land in suit in the second appeal was granted by a sanad in 1839 at a small annual rent subject to a stipulation, " the said ground to be at any time resumable by Government for public purposes " upon notice and payment of compensation.

In 1908 the Government of Bombay gave notice that they desired to resume possession of the land held under the lease and sanad for a public purpose, stating in reply to an inquiry as to the purpose intended that they proposed to utilize the land for the residence of Government officers. The compensation payable tinder the lease and sanad respectively was duly ascertained. The respondents, however, refused to accept or agree to the valuations, and declined to give up possession. The suits were thereupon instituted.

Both suits were tried before Beaman J. At the trials evidence, which was common to both suits, was given that the intention of the Government was to erect residences on the land and to offer them at moderate rents to Government officers; that owing to the dearth of suitable houses in Bombay and the high rents demanded officials were reluctant to accept appointments there, and that this was prejudicial to the efficiency of the various public services. No order or resolution of the Government was put in evidence.

The learned judge delivered judgment for the plaintiff (respondent) in both suits and made decrees for delivery of possession.

The High Court (Chandavarkar and Batchelor JJ.) affirmed these decisions.

De Gruyther, K.C., and McCardie, for the appellant in the first appeal ; De Gruyther, K.C., and Kenworthy Brown, for the appellants in the second appeal. The purpose for which it is proposed to use the land is not a public purpose within the meaning of the lease and sanad. The true test is that there must be an intention to change the nature of the occupation from a private to a public occupation, and to render the land available to the public at large. Every act of Government, as a Government, is for a public purpose, but in this lease and sanad the expression must be given a more limited meaning. If this is not so the lease, which purports to be for ninety-nine years subject to the proviso, would in effect be determinable at will. To resume possession with the object of raising the rents and increasing the public revenue would be a public purpose in the wide sense, but it would not be a public purpose within the meaning and intention of the grants as appearing from their terms. [Land Acquisition Act (I. of 1894), s. 6, and Shastri Ramchandra v. Ahmedabad Municipality (( 1909)

I. L. R. 24 Bomb. 600.) were referred to.]

Sir Erle Richards, K.C., and Dunne, for the respondent in both appeals, were not called upon.

The judgment of their Lordships was delivered by

67 Law Rep. 42 Ind. App. 44 ( 1914- 1915)

Hamabai Framjee Petit V. Secretary of State 169

LORD DUNEDIN. The same general point is raised in these two appeals.

The first appellant was lessee under the Government as successors of the East India Company under a lease of date April 18, 1854, which lease contained a power of resumption in favour of the lessor if " the Company, their successors or assigns, shall, for any public purpo