Governor-General in Council vs The Municipal Council

Lionel Leach, C.J.—Within the municipal limits of the Town of Madura is a tank called the Anuppanady Tank over which the South Indian

Railway passes. The railway was constructed in 1902 and, for the purpose of taking off water which overflowed from this tank, a culvert was built

under the railway line. The tank on its western side is close to the Chinthamony Road. The water from the tank on this side flows over a weir which

has a capacity of 500 cusecs. The culvert built by the railway company was not sufficient in itself to take off all the water flowing out of the tank

and the Municipality of Madura had to build four other culverts. The water carried by all these culverts flows into a channel constructed by the

Government, which runs parallel to the Chinthamony Road. In 1936 heavy floods were experienced in the Madura District and it became evident

that the culverts, which were only six feet wide, were not large enough to deal with an exceptional flow of water. As a result of the floods in 1936,

many houses in this part of Madura were inundated. The Collector raised the question of the construction of additional works and it was decided

that the municipal culverts and the railway culvert should each be widened to twenty feet and that the depth should be made five feet. There was

considerable correspondence on the subject between the Collector, the Commissioner of the municipality and the District Engineer of the railway

company. The railway company objected to pay the cost of rebuilding its culvert and considered that it should be borne by the municipality or the

Government. A suggestion that the banks of the channel should be made higher as an alternative measure was not accepted by the Provincial

Government, which on 26th November 1938 passed an order under the provisions of Section 11(3)(b) of the Indian Railways Act, 1890,

directing the railway administration to widen its culvert to twenty feet at its own cost within six months of the date of the requisition. In obedience to

this order, the railway administration widened the railway culvert to the required length. The municipality widened the municipal culverts to the

same extent.

On 25th July 1942 the South Indian Railway Company, Limited, filed a suit against the Municipal Council of Madura to recover the sum of Rs.

16,222-5-0, the alleged cost of the work which it had done in accordance with the order of the Government. It claimed that the order passed u/s

11(3)(b) of the Indian Railways Act was ultra vires because the Government could not require a work to be done which was not necessary in

1902 when the railway was constructed. If it had power at all to require the company to do the work it could, it was said, only act u/s 12, in which

case the cost would be chargeable to the municipality or the Government. The company further maintained that it was in law entitled to recover the

amount from the municipality by reason of the provisions of Section 70 of the Indian Contract Act. These contentions were all rejected by the

Subordinate Judge. The appeal is from the decree passed by him dismissing the suit.

Sub-Section 1 of Section 11 specifies the works which a railway company shall undertake and maintain for the accommodation of the owners

and occupiers of lands adjoining a railway and they are contained in two Clauses (a) and (b). We are here concerned with Clause (b) which reads

as follows:

All necessary arches, tunnels, culverts, drains, watercourses or other passages, over or under or by the sides of the railway, of such dimensions as

will, in the opinion of the Provincial Government, be sufficient at all times to convey water as freely from or to the lands lying near or affected by

the railway as before the making of the railway or as nearly so as may be.

The provisions of the section are subject to three provisos set out in Sub-Section 3. The only one which need be referred to is the second

proviso which is in these terms:

Save as hereinafter in this chapter provided, a railway administration shall not, except on the requisition of the Provincial Government, be

compelled to defray the cost of executing any further or additional accommodation works for the use of the owners or occupiers of the lands after

the expiration of ten years from the date on which the railway passing through the lands was first opened for public traffic.

Therefore, no owner or occupier has a right to compel a railway administration to execute any additional accommodation work for his use after

ten years have elapsed from the time the railway was opened; but the words ""except on the requisition of the ''Provincial Government"" give power

to the Government to require an additional accommodation work to be carried out by the railway administration at any time at the cost of the

railway administration.

Section 12 says:

If an owner or occupier of any land affected by a railway considers the works made under the last foregoing section to be insufficient for the

commodious use of the land, or if the Provincial Government or a local authority desires to construct a public road or other work across, under or

over a railway, he on it, as the case may be, may at any time require the railway administration to make at his or its expense such further

accommodation works as he or it thinks necessary and are agreed to by the railway administration or as, in case of difference of opinion, may be

authorized by the general controlling authority.

Section 3 (22) states that the general controlling authority means, in relation to a federal railway, the Federal Railway Authority, in relation to a

minor railway, the Provincial Government, and in relation to an Indian State Railway, the Governor-General acting in his discretion. The controlling

authority here is the Provincial Government.

In support of the contention that the order of the Provincial Government of 26th November 1938 is ultra vires, Mr. Braddell on behalf of the

Appellant has relied on two English cases, namely, Rhondda and Swansea Railway v. Talbot [1897] 2 Ch. 131 and Great Western Railway

Company v. Talbot [1902] 2 Ch. 759. Before examining the judgments in those cases we must point out that the English law with regard to

accommodation works required to be carried out by a railway administration differs in important respects from the law of British India. Section 68

of the Railways Clauses Consolidation Act, 1845, specifies the works which a railway company is required to carry out for the accommodation of

owners or occupiers of lands adjoining the railway. Section 69 states that, if a difference arises in respect of the kind or number of such

accommodation works or the dimensions or sufficiency thereof or respecting the maintenance, it shall be determined by two justices. Section 70

provides for the execution by the party aggrieved of the work found necessary by the justices in the event of the railway company failing to carry

out the work itself. Section 71 deals with the power of owners of lands to make additional accommodation works which may prove to be

necessary, but at their own expense. By virtue of Section 72 such additional works shall be constructed under the superintendence of the railway

company''s engineer. Section 73 states that the company shall not be compelled to make any further or additional accommodation works after the

expiration of the prescribed period, or, if no period be prescribed, after five years from the completion of the works and the opening of the railway

for public use.

There is no provision in the English Act corresponding to that contained in Section 11(3)(b) of the Indian Railways Act with regard to the power

of the Provincial Government to issue a requisition to the railway company to carry out additional accommodation works at its own expense at any

time. The period of five years prescribed by the English Act is made ten years by the Indian Act. Under the English Act any dispute is to be settled

by two justices, whereas under the Indian Act the Provincial Government is the arbiter Under the English Act there is no power given to the

justices or to a public authority to issue a requisition, whereas the Indian Act gives a very wide power in this respect to the Provincial Government.

In Rhondda and Swansea Railway v. Talbot [1897] 2 Ch. 131 one of the questions related to the accommodation works which the company

might be required to make u/s 71 of the Railways Clauses Consolidation Act, 1845. It was held that the railway company could not be required to

make accommodation works beyond what was really necessary at the time of the construction of the railway; in other words, an alteration in the

character of the land and the nature of the neighbourhood Could not be taken into consideration. This opinion was re-affirmed by the Court of

Appeal in Great Western Railway v. Talbot [1902] 2 Ch. 759.

It is said on behalf of the Appellant that these decisions should be applied when considering the powers of requisition given to the Provincial

Government by Section 11(3)(b) of the Indian Act. There are such wide differences between the Railways Clauses Consolidation Act and the

Indian Railways Act that we are unable to accept this argument. The Provincial Government has the power at any time to make a requisition,

however many years may have elapsed since the construction of the railway. In giving such a wide power to the Provincial Government the

Legislature could not, in our judgment, have had the intention of restricting the additional works to what was really required when the railway was

constructed. Moreover, it must be borne in mind that the conditions in England are vastly different from the conditions in India. In England, when

the Railways Clauses Consolidation Act was passed, there were in reality no waste lands. The country was to a very large extent developed.

When the Indian Railways Act was passed, there were vast open spaces, much of which were waste lands, and the conditions to-day are not very

different, but new inhabited localities do spring up along railways because of the ready means of communication which railways provide.

But, even if the rule laid down in the English cases to which reference has been made should be applied to Section 11(3)(b) of the Indian Act,

it cannot be said that the work which the Plaintiff company was called upon to do in 1938 was not a work which was required in 1902. As we

have mentioned, the weir on the western side of the Anuppanady Tank had in 1902 a capacity of 500 cusecs. The same weir is still functioning and

it is sufficient for the purpose of taking all surplus water from the tank. The culverts which were erected in 1902 were not sufficient to deal with the

water which overflowed from the tank as a result of an unusually heavy rainfall. The order which the Provincial Government passed on 26th

November 1938 stated that the additional works were required in order to discharge 500 cusecs which has always been the capacity of the

surplus weir of the Anuppanady Tank. We hold that the English cases do not apply to Section 11(3)(b) but, if they do, the widening of the railway

culvert to twenty feet was a work which was as necessary in 1902 as it was as in 1938. Therefore, the plea that the order of the Provincial

Government is ultra vires fails from whichever angle it is viewed.

The suggestion made by the learned Counsel for the railway company that the Provincial Government had only power to make a requisition u/s

12 has in effect been answered. Section 12 merely applies when an owner or occupier of land affected by a railway asks for further

accommodation works to be carried out or if the Provincial Government or a local authority desires to construct a public road or other works

across, under, or over a railway. Admittedly the municipality does not own any land adjoining the railway in this locality and it made no request for

additional accommodation works. The Provincial Government was not proposing to construct a public road or other work across or under the

railway. Under this section the railway company cannot be required to do any work at its own expense and no action was taken by any one under

this section. Therefore the section can have no application here.

In answer to a question put by this Court in the course of the arguments, Mr. Braddell made it quite clear that he did not rely on Section 11 or

Section 12 for the company''s claim against the municipality. He admitted that the claim against the municipality could only be enforced by reason

of Section 70 of the Indian Contract Act. Section 70 reads as follows:

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person

enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

The railway company could only claim under this section if the work which it did was done for the municipality and the municipality enjoyed the

benefit of it. The work was not done for the municipality. It was done under the order of the Government as the result of action being taken by the

Collector of Madura, a Government servant. The object of the work was to prevent the flooding of houses and buildings in that locality. It has not

been suggested that the municipality owned any of these buildings or houses. Therefore, the work which was done was done primarily for the

benefit of the private owners of property in the neighbourhood. While the railway company recognizes this to be the case, it is said that indirectly

the municipality receives a benefit because it recovers taxes from the owners or occupiers of the property. This is a very indirect benefit and

Section 70 can, in our opinion, only have application where there is direct benefit to the person for whom the work is done. The persons who are

enjoying the benefit of this work are the owners and occupiers of the buildings in the locality. It would be doing violence to the section to say that in

these circumstances the work was done for the benefit of the municipality.

For these reasons the appeal is dismissed with costs.