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Bombay High Court
Hari Pandurang And Anr. vs Secretary Of State For India In … on 7 April, 1903
Equivalent citations: (1904) ILR 27 Bom 276
Author: K C Jenkins
Bench: L Jenkins, K C.J., Batty


L.H. Jenkins, K.C.I.E. C.J.

1. In the year 1898 certain improvements were projected in the City of Bombay, and an Act called the City of Bombay Improvement Act, 1898, was passed giving to a Board thereby constituted certain powers with a view to carry these improvements into effect.

2. On the 25th September, 1902, there was published in the Bombay Government Gazette a declaration purporting to be in pursuance of the Act, stating that the Governor of Bombay in Council had sanctioned a street scheme made by the Trustees for the Improvement of the City of Bombay under the provisions of the Act (that being the style of the Board thereby constituted) and that certain lands, including those in suit, were “needed to be acquired by the said Trustees for the purposes of executing the said street scheme” and were required for a public purpose.

3. On the 27th November, 1902, the plaintiffs received notices addressed to Pandurang Nilaji, their deceased father, and also to each of them in the following terms:

Notice is hereby given that the undermentioned piece of ground, with the building thereon erected, situated within the limits of the Registration District of Bombay, in the Island of Bombay, and recently marked cut and measured, is about to be taken by Government for a public purpose, viz., for the street scheme No. III from Elphinstone Bridge to Queen’s Road proposed by the Trustees for the Improvement of the City of Bombay, under Act I of 1894 in accordance with a declaration, dated 22nd September, 1902, published in the Bombay Government Gazette of the 16th September 1902. If you have any interest in this land and building, or are entitled to act for person so interested, you arc hereby called upon to appear personally or by agent on Friday, the 12th December, 1902, at 11 A.M. at the office of the Special Collector, Bombay, in the Chartered Bank New Buildings, opposite Queen’s Statue, on Esplanade Road, to state and prove by documents the nature of such interests in the land or building, and the amount and particulars of any claim you may wish to prefer for the same.

All that piece or parcel of land or ground, together with buildings erected thereon, situate at 7th Khetwady Lane, assessed by the Collector of Land Revenue under new No. 9233 and New Survey No. 6459 and by the Collector of Municipal Bates and Taxes under D Ward, No. 1967, and street No. 18–15, bounded on the north by on the south by the property of Baboo Deoji, a Bagmali; on the west by the 7th Khetwady Lane; and on the east by the property of Jeewandas Ebji Sivji, containing an approximate area of 23d square yards, and is now in the occupation of Pandurang Nilaji.

(Signed) J. McNeill,
Special Collector.

Accompanying each was a document to the following effect:


Notice to Claimants foe Properties to be acquired
under the Above Act.

Special Collector’s Office:

Bombay, 27th November, 1902.

To Mr.

With reference to the accompanying notice, I beg to inform you that in order to facilitate the making of awards in the large number of cases now pending before me under the above Act, the following procedure will so far as practicable, be followed:

1. On the date and at the hour mentioned in the accompanying notice, you should appear personally or by duly authorised agents and should produce your documents of title and bills for Municipal taxes and Government and Fazondari or other rents paid by you and all other documents in support of your claim, together with a statement in writing of the amount claimed in respect of the property to be acquired.

2. You should also produce on the above date, under Section 10 of the Land Acquisition Act, 1894, a statement in writing signed by you giving the following particulars as far as practicable:

The name of every other person possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mortgagee tenant, or otherwise, and of the nature of such interest, and of the rents and profits (if any) received or receivable on account thereof for three years next preceding the date of the statement. Should any of your documents of title be in the hands of a mortgagee or other third parties, you should obtain a sub-pana from me for the production by any such third parties of those documents.

3. If you wish to support your claim by a valuation made by an Engineer, Surveyor or others, you will be required to be prepared with such valuation with your other papers on the date mentioned in the accompanying notice, and an adjournment will not be granted on the ground that such valuation is not yet completed or that the matter has recently been placed in the hands of professional advisers, unless it be proved to any satisfaction that the delay was unavoidable.

4. In the event of the amount claimed in respect of any property not being considered reasonable, the inquiry in respect of such property will either proceed or Will be adjourned to some subsequent date, when you must be prepared to offer any evidence you may consider necessary in support of your claim.

(Signed) B.H. Jayakar,
for Special Collector.

4. On the 23rd of February, 1903, Mr. McNeill, one of the Special Collectors under She Improvement Act), having made an award of the compensation which in his opinion should be allowed for the premises, gave to the plaintiffs notice that they should hand over possession of the property on the 27th of that month.

5. On the 24th of February the plaintiffs commended this suit against the Secretary of State for India in Council and the Trustees for the Improvement of the City of Bombay, praying as follows [His Lordship read the prayers, supra, page 428].

6. The proceedings to obtain possession are resisted by the plaintiffs on the ground, first, that the local Legislature had no power to pass the City of Bombay Improvement Act, and secondly, that if they had, the procedure prescribed by that Act was not observed.

7. At the hearing the following issues were raised [His Lordship read the issues, supra,

8. The original defendants were the Secretary of State for India in Council and the Trustees for the Improvement of the City of Bombay; the case, however, had proceeded but a short way when, on the plaintiff’s application, Mr. McNeill, the Special Collector, was added as a party. He raised the same issues as the Improvement Trustees.

9. It will be seen that the really important question in the case is, whether the City of Bombay Improvement Act was within the powers of the local Legislature, and that I propose first to consider. It is a legitimate subject of discussion in this Court, for the Governor of this Presidency in Council is a subordinate Legislature, whose authority in the way of law-making is subject to and dependent upon the Acts of Parliament, from which their legislative powers are derived, so that we have the right, and are charged with the duty, of deciding judicially, whether the impugned legislation is within the scope of their authority.

10. It would be to no purpose now to trace the history of the local Government’s legislative powers beyond the Statute 3 & 4 Will. IV, c. 85, whereby the several local Legislatures were superseded and one central legislative authority was established. Later, it was determined to restore to the Presidencies of Madras and Bombay the power of making laws and regulations within defined limits, and the Indian Councils Act, 1861, was passed.

11. The sections of that Act whish deal with the subject are 42 and 43, which are in these terms:

42. The Governor of each of the Presidencies in Council shall have power, at meetings for the purpose of making laws and regulations as aforesaid, and subject be the provisions herein contained, to make laws and regulations for the peace and good government of such Presidency, and for that purpose to repeal or amend any laws and regulations made prior to the coming into operation of this Act by any authority in India, so far as they affect such Presidency:

Provided always that such Governor in Council shall not have power of making any laws or regulations which shall in any way affect any of the provisions of this Act or of any other Act of Parliament in force or hereafter to be in force in such Presidency.

43. It shall not be lawful for the Governor of either of the aforesaid Presidencies, except with the sanction of the Governor-General previously communicated to him, to make regulations or take into consideration any law or regulation for any of the purposes next hereinafter mentioned; that is to say-

(1) affecting the public debt of India or the customs duties, or any other tax or duty now in force and imposed by the authority of the Government of India for the general purposes of such Government:

(2) regulating any of the current coin or the issue of any bills, notes or other paper currency:

(3) regulating the conveyance of letters by post office or messages by the electric telegraph within the Presidency:

(4) altering in any way the Penal Code of India, as established by the Act of the Governor-General in Council, No. XLV of 1860:

(5) affecting the religion or religious rights and usages of any class of Her Majesty’s subjects in India:

(6) affecting the discipline or maintenance of Her Majesty’s Military or Naval forces:

(7) regulating patents or copyrights:

(8) affecting the relations of Government with foreign Princes or States:

Provided, always, that no law or provision of any law or regulation which shall have been made by any such Governor in Council and assented to by the Governor-General as aforesaid, shall be deemed invalid only by reason of its relating to any of the purposes comprised in the above list.

12. This Act was amended by the Indian Councils Act of 1892, which by Section 6 provides:

6. In this Act-

The expression “Local Legislature” means (1) the Governor in Council for the purpose of making laws and regulations of the respective provinces of Fort St. George and Bombay; and (2) the Council for the purpose of making laws and regulations of the Lieutenant-Governor of any provinces to which the provisions of the Indian Councils Act, 1861, touching the making of laws or regulations have been or are hereafter extended or made applicable:

The expression “province” means any Presidency, division, province or territory over which the powers of any local Legislature for the time being extend.

13. For the purpose in hand its is in these Acts, subject to the limitation imposed by 24 & 25 Vict., c. 104, that the constitution of the local Legislature is to be found.

14. I now will pass on to the Indian Legislation which bears on the questions at issue in this suit. In 1894 there was passed by the Governor General in Council Act I of that year–an Act to amend the law for the acquisition of land for public purposes and companies,–and it was this Act of the Supreme Legislature that, at the passing of the City of Bombay Improvement Act of 1898 (to which I will in future refer as the Improvement Act), regulated the compulsory acquisition of land. Proceeding is the Improvement Act, we find that it recites as follows [His Lordship read the preamble to the Act]. Section 1 provides that it shall extend “only to the City of Bombay” and Section 3 that:

The duty of carrying out the provisions of this Act shall, subject to such conditions and limitations as arc hereinafter contained, be vested in a Board to be called. “The Trustees for the Improvement of the City of Bombay,” and such Board, hereinafter referred to as “the Board,” shall be body corporate and have perpetual succession and a common seal, and shall sue and be sued by the name first aforesaid.

15. Chapter III deals with the duties exercisable under the Act in relation to the schemes contemplated by it and the acquisition of the land required for the purposes of the same.

16. Now it will have been noticed that Section 3 enacts that the Board will be a body corporate and have perpetual succession. This has given rise to the argument before us that it is beyond the powers of the Bombay Legislature to create a corporation. In England the Sovereign’s consent (express or implied) is necessary to the creation of a corporation by reason of the Crown’s prerogative, and even a statutory corporation is no exception to this, as of the constituting Act the royal assent is an indispensable ingredient (Bacon’s Abridgment: Corporation B.; Stephen’s Blackstone, Book IV, Part III, Chapter I; and Chitty’a Prerogative). That the Crown’s prerogative extends here is recognised by Section 24 of the Indian Councils Act, 1861.

17. It is however, unecessary to discuss the power of the local Legislature to create a corporation, for even if that power does not exist, still that would not make the Improvement Act ultra vires in relation to the matters at issue in this suit; for were the Board not legally incorporated, that would not defeat the purposes of the Act in an essential particular.

18. Apart from this, however, it is argued that the Improvement Act is beyond the powers of the local Legislature; that the compulsory acquisition of land in India is governed by the Land Acquisition Act; and that the Governor in Council had no power to depart from the principles and methods of that Act.

19. In the first plane it is contended that so far as the Improvement Act, can be regarded as a repeal or amendment of the Land Acquisition Act, its validity must be judged by Section 5 of the Indian Councils Act of 1892, under which the local Legislature of any province can only repeal or amend as to that province. That, it is said, does not allow of an amendment or repeal affecting a particular corporation in a particular locality. In my opinion this argument has no force: the reference to the province is merely for the purpose of defending the limits of legislative operation and in no way imposes the condition that all legislation should affect the whole of that area. To accept the plaintiffs’ argument would be to impose a restriction on local legislation not required by the words of the Act, and productive of great practical inconvenience.

20. Next, it has been contended that there has been no repeal or amendment of the Land Acquisition Act, and that the compulsory acquisition of land must, therefore, be governed by that Act, But BO far as the Improvement Act is inconsistent with the Land Acquisition Act, it is by implication a repeal or amendment of it. But in fact it is by no means dear that the Land Acquisition Act is touched by the Improvement Act, for it is limited in its operation to those cases in which the compensation to be awarded is to be paid by a company, or wholly or partly out of, public revenues of some fund controlled or managed by a local authority. But from Section 3 of the Land Acquisition Act it is manifest that the Board, even if legally incorporated, is not a company within the meaning of the Act, while the compensation is not payable out of the public revenues or a fund of the character prescribed.

21. Then stress has been laid on the provision in the Indian Councils. Act, 1861, that the Governor in Council is only empowered to “make laws and regulations for the peace and good government” of the Presidency. This legislation, it is said, does not comply with this condition, for it is calculated to cause discontent. Clearly this is a question into which we cannot go: it involves questions of policy, which it is outside our jurisdiction to discuss.

22. This brings me to the question whether the Act is vitiated by anything contained in Section 48. A tribunal consisting of a President and two Assessors is thereby appointed to perform the functions of the Court under the Land Acquisition Act, and by the 11th Sub-section it is enacted that:

In any case in which the President may grant a certificate that the case is a fit one for appeal, there shall be an appeal to the High Court from the award or any part of the award of the Tribunal.

23. The scheme, therefore, of the Act in relation to ascertaining the compensation to be paid on the compulsory acquisition of land is, that, the Collector in the first place is to award the compensation, which in his opinion should be allowed (see Section 11 of the Land Acquisition Act); but any person interested, who has not accepted an award so made, may require that the matter ha referred to the determination of the Tribunal of Appeal (Section 18 of the Land Acquisition Act). From the award of the Tribunal there is, if the President of the Tribunal grants the necessary certificate, an appeal to this Court.

24. The provision in favour of this last appeal has hitherto proved illusory, because on no occasion has the President granted a certificate; Still it is fair to assume that; the Legislature regarded the provision for appeal to this Court as a part of the Act, that might have some useful operation. The question, therefore, arises whether the local Legislature had power to grant on appeal to this Court dependent on the will of the President of the Tribunal, and if not, be what extent the validity of the Act is thereby affected.

25. To answer this question we must first consider whether the Tribunal: of Appeal is a Court; and this depends upon whether the Tribunal was intended to be a Court, and, if so, whether the creation of a Court was Within the powers of the Local Legislature.

26. In considering whether the Tribunal of Appeal is a Court, it is important in the first place to observe what is its constitution. It consists, of a President and two Assessors, of whom only the President need have any legal training: the award of the majority (except on points of law) prevails: the President and one Assessor are appointed by the Government, the other Assessor by the Corporation, by which is presumably meant the Municipal Corporation of Bombay: the members of the Tribunal are appointed for one year and are eligible for re-appointment: they are removable by Government for inability, misbehaviour or other good and sufficient cause: the President alone has power to make rules for the conduct of the Tribunal subject to the sanction of the Government, while under the High Courts Act 1861 (Stat. 24 & 25 Vict., c. 104), Section 15, it is the High Court that is empowered to frame rules of practice for subordinate Courts: the Act does not purport to constitute the Tribunal a Court, but provides that it shall perform the functions of the Court under the Land Acquisition Act, and shall be deemed to be the Court: the President is deemed to be the Judge, and the Tribunal’s award (subject to the right of appeal I have mentioned) is final. Can it reasonably be said that a body so constituted is a Court of Justice? I think not; it appears be me that the manifest purpose of the Legislature was be create a Tribunal that should not be a Court, but a body free from the control and superintendence of this Court, exact so far as intervention by way of appeal might be sanctioned by its President, and I am of opinion that the object has been attained.

27. Under these circumstances it is unnecessary, to consider whether the creation of a Court is an unauthorised invasion of the Crown’s prerogative (see Section 24 of the Indian Councils Act, 1861, and Bell v. Municipal Commissioner for the City of Madras (1902) 25 Mad. 457, or whether the creation of a new Court within the limits of this Presidency is within the legislative powers of the Governor in Council.

28. But if the Tribunal was not a Court, what power was there to give the limited right of appeal to this Court that Section 48(11) of the Improvement Act proposes to provide?

29. Apart from special jurisdiction in relation to particular matters derived horn the authorised legislation of the Governor General in Council, the civil jurisdiction of the High Court is (1) ordinary original, (2) extraordinary original, or (3) appellate and revisional. Now this limited right of appeal under the Improvement Act does not coma within either of the last two heads of jurisdiction; the appellate and revisional jurisdiction can only come into play when there has been a decision of a Court–a condition which ex hypothesi does not exist here,–while the extraordinary civil jurisdiction obviously can have no application. Can it then be said that our ordinary civil jurisdiction is of any avail? I think not. The conditions are so widely different from those under which our original jurisdiction is exercised that, in my opinion, they do not permit of our dealing with the case as falling within that jurisdiction.

30. But if this be so, the Improvement Act cannot confer on us this jurisdiction, because the local Legislature has no power to control or affect by their Acts the jurisdiction or procedure of the High Court, as that power rests with the Imperial Parliament and with the Legislative Council of the Governor General (see 24 & 25 Viot., c. 104).

31. What then is the result of this defect in the prescribed machinery for ascertaining the compensation payable under the Improvement Act? No authority has been cited to is that throws light on this question; but on a consideration of all the circumstances we think that the whole. Act is not thereby invalidated. It may be that in some cases the several provisions of an Act are so closely connected and inter dependandent that invalidity in one would necessarily involve the invalidity of the rest; but that does not seem to me to be the case here. Though the machinery for ascertaining compensation may be defective so far as it provides for an appeal to this Court, I do not think that as a consequence the provision for taking possession (with which alone we are concerned in this suit) must be treated as beyond the powers of the Bombay Legislature.

32. The Colonial Laws Act, 1865, of course has no application to the present case, but the third section of that Act furnishes us with an interesting illustration of the principles on which the English Parliament has proceeded under similar circumstances. It is by that section provided that “any Colonial law, which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony be which such law may relate or repugnant to any order or regulation made under authority of such Act of Parliament or having in the colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.”

33. If we apply this principle to the Improvement Act, than the provisions for taking possession are not void.

34. If it be said that the Improvement Act would not have been passed in its present form, had it bean realised that the provision for a qualified right of appeal to this Court was of no effect, we can only say that here the discussion enters on a field of speculation closed to us; but no doubt the matter will receive due attention in the proper quarters and such reparation made as the circumstances of the case demand.

35. It may here be noted that even if it be that the Improvement Act has failed to carry out entirely the expressed wish of the Legislature, this would equally, perhaps, still more have been the case had we been able to hold the Tribunal to be a Court, for that would have attached the consequence of superintendence by this Court, which it manifestly was intended to avoid.

36. Having thus decided that the provision for taking possession is not void, I will now proceed to deal with the objection that the procedure prescribed by the Act has not bean followed.

37. Section 32 provides:

Upon completion of a street scheme, the provisions of Sections 27, 28 and 29 shall with all necessary modifications be applicable to the scheme in the name manner as if the scheme ware an improvement scheme.

38. It is not suggested that the provisions of Sections 27 and 28 have not been complied with. Section 29(1) enacts that-

On receipt of the sanction of Government, the Chairman shall forward a declaration for notification under the signature of a Secretary to Government stating the fact of such sanction and that the land proposed to be acquired by the Board for the purposes of the scheme is required for a public purpose.

39. I have already referred to this declaration, and I cannot see in what respect it fails to comply with the provisions of the Act. It states (a) that the Governor in Council has sanctioned the scheme; (b) that the lands are required for a public purpose; (c) the purpose for which they are needed, the limits and approximate area; and {d) the place where a plan may be inspected; in this it has fulfilled the requirements of the Improvement Act.

40. Then complaint is made of the notices given. I have already read one set of these notices, and for the purpose in hand that will suffice, as the other sets are in identical terms.

41. These documents, it will be seen, refer only to the Land Acquisition Act, making no direct mention of the Improvement Act; this, it is urged, is a failure to observe the requirements of the law.

42. It will be instructive to see how the reference to the Land Acquisition Act crept in. Portions of that Act are by Section 47 incorporated into 6be chapter of the Improvement Act which deals with the acquisition of land; that section runs as follows:

47. Notwithstanding anything contained in the Land Acquisition Act, 1894 (in this and the next succeeding section referred to as the “said Act”), the said Act shall not, except to the extent set forth in Schedule A, apply to the acquisition of land under this Act, but the said Act shall, to the extent set forth in the said schedule, regulate and apply to the acquisition of land otherwise than by agreement and shall for that purpose be deems to form part of this chapter in the same manner as if enacted in the body hereof, subject to the provisions of this chapter and to the provisions following (namely):

(1) A reference to any section of the said Act shall be deemed to be a reference to such section, as modified by the provisions of this chapter, and the expression “land,” as used in the said Act, shall in addition to the meaning included therein under clause at of Section 3 of the said Act, be deemed, for the purposes of this Act, to include rights created by legislative enactment over any street; and Clause (b) of Section 3 of the said Act shall, for the purposes of this Act, be read as if the words “or if he is the owner of any right created by legislative enactment over any street forming part of the land” were added after the words “affecting the land;”

(2) In the construction of Sub-section (2) of Section 4 of the said Act and the provisions of this chapter, the provisions of the said sub-section shall, for the purposes of this Act, be applicable immediately upon the passing of a resolution under Section 23, 30 or 38, and the expression “Local Government” shall be deemed to include the Board, and the words “such locality” shall be deemed to mean the locality referred to in such resolution;

(3) In the construction of the sections of the said Act deemed to form part of this chapter and the provisions of this chapter, the publication of a declaration under Sections 2, 82 or 39 shall be deemed to be the publication of a declaration under Section 6 of the said Act;

(4) In the construction of Section 50, Sub-section (2), of the said Act, and the provisions of this chapter, the Board shall be deemed to be the local authority or company concerned.

43. Turning to the schedule, we find that the portions of the Land Acquisition Act which regulate the acquisition of land under the Improvement Act are Part I except Clauses (d), (e) and (f) of Sub-section 3, and Part II except Sub-section 1 of Section 4, Section 6, and Sub-section 2 of Section 17.

44. Now the section which deals with notices is the 9th, which provides:

(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may he made to him.

(2) Such notice shall state the particulars of the land so needed and shall require all persons interested in. the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of the publication of the notice) and to state the nature of their respective interests in the land and the amount and the particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under Section 8. The Collector may, in any case, require such statement to be made in writing and signed by the party or his agent.

(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf, within the revenue district in which the land is situate.

(4) In case any person so interested resides elsewhere and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office Act, 1866.

45. Nothing has been said before us as to the public notice prescribed by the Act: nor has any suggestion been made that it was not in order; therefore I assume that it was not open to objection. The argument before us has been limited to the insufficiency of the notices I have read.

46. Now Sub-section 3 enacts, that the notice should state that the Government intends to take possession of the land. The notice, it is true, does not use those precise words, but it says that the land is about to be taken by Government, and that is substantially the same thing. Next, the notice should state that claims for all interests in the lands should be made to the Collector. With this too there has been, if not a verbal, at any rate practical compliance. In fact, it has not been urged before us or apparently before the Special Collector that the notice was hot a good one under the Land Acquisition Act; the grievance has been that the notice being under the Land Acquisition Act the proceedings were under the Improvement Act. But there is nothing in the Improvement Act which prescribes that the notice shall be expressed to be under that Act; so that there has been no omission of a formality directed by the Act. It at must only is that there has been a misdescription in a particular, on which the Act is silent. Under these circumstances what we have to consider is, whether the plaintiffs have been in any way misled or damnified. I am clearly of opinion that the plaintiffs have made out no such case.

47. The merits on this part, therefore, are not in the plaintiffs’ favour, and if we are to be guided by the strictest technicalities it is at least a question whether the plaintiff’s can claim that they are on their side, for among the imported sections of the Land Acquisition Act is the 1st, which provides that the Act may be called the Land Acquisition Act, 1898, and this is to be deemed to form part of the Act–Chapter III of the Improvement Act–in the same manner as if enacted in the body thereof. But I do not intend to pursue this further, as in my opinion the reason I have already given is sufficient answer to the plaintiffs’ objection, and an endeavour to discover the purpose and meaning of the Legislature in incorporating Section 1 of the Land Acquisition Act is not, under the circumstances, profitable.

48. In this view of the case the plaintiffs must fail, but as the point has been argued before us at length, it will be convenient that we should I consider and determine the issue, whether having regard to Section 424 of the Civil Procedure Code (XIV of 1682) the suit is maintainable against the Secretary of Stat a. That Section provides:

No suit shall be instituted against the Secretary of State in Council or against a public officer in respect of an act purporting to be done by him in his official capacity, until the expiration of two months next alter notice in writing has been, in the case of the Secretary of State in Council, delivered to, or left at the office of, a Secretary to, the Local Government or the Collector of the District, and, in the case of a public officer, delivered to him or left at his office, stating the cause of action and name and place of abode of the intending plaintiff, and the relief which he claims; and the plaint must contain a statement that such notice has been so delivered or left.

49. In this case no notice of suit has been given, but it is argued that, as the remedy sought is, an injunction, no notice was necessary. In support of this view the English cases, of which Flower v. Local Board of Low Leyton (1877) 5 Ch. D. 347 is a type, were cited to us. It was further said that the words “in respect of an act purporting to be done by him in his official capacity” must be read not only with “a public officer” but also with “the said Secretary of State in Council.” In my opinion, the answer to this argument is that in this suit and in the circumstances of this case no injunction could be claimed against the Secretary of State. In illustration of the position of the Secretary of State in Council, I may refer to the judgment of James, L.J., in Kinlock v. Secretary of State for India (1880) 15 Ch. D. 1.

50. My finding, therefore, on the issues raised on behalf of the Secretary of State are:

(1) Having regard to Section 424 of the Civil Procedure Code, the suit is not maintainable against the Secretary of State in the absence of notice.

(2) The proceedings before the Special Collector are not void for any of the reasons stated in the plaint.

(3) The plaintiffs are not entitled to an injunction against him.

51. Of the three issues raised by the Trustees and the special Collector the first was afterwards withdrawn, and my findings on the other two issues are in the negative.

52. There is one further matter on which I desire to comment; it is the fact that an ex parte injunction was granted. The power, no doubt, exists; but having regard to the circumstances under which business has to be conducted here, I think the greatest care should be employed in its exercise. There may be instances where the urgency is so great that an ex parte injunction is necessary, but that was not the case here. The suit was instituted and the ex parte order was made on Tuesday, the 24th of February, 1903. But there was, so far as I can Bee, no reason why the plaintiffs should not have been required to serve short notice of motion for the following Thursday, as this would have been in time still to give the plaintiffs any interim relief to which they might have been entitled. Having regard to the conditions which prevail here, the Court should, if possible, always require notice, however short, to be given.

53. The decree which must be passed here is that the suit must be dismissed with costs, of which there will be two sets, one for the Improvement Trustees and one for the other defendants.

Batty, J.

54. Concurred.

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