Judgement

Appeal by special leave from a judgment and decree of the High Court (August 9, 1912) affirming, subject to a modification, a decree of Beaman J.

Law Rep. 45 Ind. App. 125 ( 1917- 1918) Narma V. Municipal Commissioner for Bombay

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The suit was instituted by the appellants in the High Court under circumstances which sufficiently appear from the judgment of their Lordships.

The appellants claimed (( 1866) L. R. 1 H. L. 34, 43..) restoration of possession of their land, or a declaration that the action of the Commissioner in purporting to prescribe the " regular line " was ultra vires ; (( 1885) 28 Ch. D. 486, 498..) an order, if necessary, upon the respondents to proceed under the Land Acquisition Act; and (3.) an injunction and damages.

The trial judge, Beaman J., dismissed the suit, holding that the proper remedy open to the appellants was by compensation under s. 301 of the Act.

Upon appeal the learned judges (Sir Basil Scott C.J. and Chandavarkar J.) varied the decree. It appeared that the prescription of the regular line in respect of which possession of the land was taken on July 7, 1909, was not sanctioned by the corporation until October, and that thereupon fresh notices were served upon the appellants and possession again taken on December 3, 1909. The appellants, by consent of the parties, were decreed by way of damages for unlawful possession interest for the period between those dates at 6 per cent, upon the compensation payable. Subject to that modification, as to which no question arose upon the present appeal, the decree of Beaman J. was affirmed.

1918. Feb. 19. Sir William Garth and Parikh (De Gruyther, K.C, with them), for the appellants. The power to take land under s, 299 of the City of Bombay Municipal Act, 1888, is confined to cases where the land is required to preserve the regular line of the street. That appears from the terms of ss. 297 and 299, and from the group heading, which is " Preservation of regular line in public street." In the present case the land was not required for that purpose, but for the erection of a bridge on which the street was to be carried over the railway. There is no power to erect buildings of any kind upon land acquired under s. 299. If there was power under the Act to acquire the land it was under s. 296 ; under that section the appellants are entitled to compensation under the Land Acquisition Act, 1894. The power given by s. 299 cannot properly be exercised for a collateral purpose Galloway v. Corporation of London (1); Gard v. Commissioners of Sewers. (2) P. O. Lawrence, K.C, and Dunne, K.C., for the respondents, were not called upon.

March 14. The judgment of their Lordships was delivered by

LORD SUMNER. By the City of Bombay Municipal Act, 1888, s. 289, the Municipal Commissioner for the city of Bombay has under his control all public streets within the city, and may from time to time widen, extend, or otherwise improve any such street, or cause the soil thereof to be raised, lowered, or altered, subject to the sanction of the corporation in certain events. By s. 297 he may prescribe a line on each side of any public street, and, subject to receiving the necessary authority, may from time to time prescribe a fresh line in substitution therefor, and the line so prescribed shall be called " the regular line of the street." If the line is so drawn that any land not vesting in the corporation falls within it, the Commissioner may, by s. 299, take possession of it on the corporations behalf, which has the. effect of acquiring it for the corporation, and thereupon the land so acquired shall thenceforward be deemed a part of the public street, and the former owner will be entitled to receive certain compensation as prescribed by s. 301. The Com-missioner further has power, under s. 296, to acquire any land required for the purpose of widening, extending, or otherwise improving any public street, subject among other things to the payment of compensation in accordance