Citation Codes

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Case Number

Appeal No. 121 of 1944.

Advocates

Mr. Braddell for Messrs. King and Partridge for Appt.
Messrs. B. Sitarama Rao and C.S Rama Rao Sahib for Respt.

Judges

Leach, C.J
Lakshmana Rao, J.

Acts

British India. S. 68 of the Railways Clauses Consolidation Act, 1845,
Railways Clauses Consolidation Act and the Indian Railways Act
provisions of S. 11(3)(b) of the Indian Railways Act, 1890,
S. 71 of the Railways Clauses Consolidation Act, 1845.
provisions of S. 70 of the Indian Contract Act.
S. 70 of the Indian Contract Act. S. 70
S. 11(3)(b) of the Indian Railways Act
S. 11(3)(b) of the Indian Act.
Indian Railways Act

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Smart Summary

Case Summary — Opinion Delivered by the Chief Justice

Factual and Procedural Background

Within the municipal limits of Madura there is the Anupannady tank. The South Indian Railway line, constructed in 1902, passed over the tank and the railway company built a culvert under the line to carry off water overflowing from the tank. The tank's western side drains over a weir with a capacity of 500 cusecs. The railway culvert alone was insufficient, and the Municipality had to build four additional culverts; all culverts discharge into a Government-constructed channel running parallel to Chinthamony road.

In 1936 exceptional floods showed that the existing culverts (six feet wide) could not handle unusually heavy flows; many houses in the area were inundated. The Collector, the Municipality and the District Engineer corresponded, and it was decided to widen each culvert (including the railway culvert) to 20 feet and make them 5 feet deep. The railway administration objected to bearing the cost. On 26 November 1938 the Provincial Government, invoking the provisions of S. 11(3)(b) of the Indian Railways Act, 1890, requisitioned the railway administration to widen its culvert to 20 feet at its own cost within six months. The railway complied and widened the culvert; the Municipality also widened its culverts.

On 25 July 1942 the South Indian Railway Company Ltd. sued the Municipal Council of Madura for Rs. 16,222-5-0, being the alleged cost of the work it had carried out pursuant to the Government's order. The company contended that the Provincial Government's order under S.11(3)(b) was ultra vires (because the work was not necessary in 1902), or if power existed it was only under S.12 (in which event the cost would be chargeable to the Municipality or Government). The company also relied on S.70 of the Indian Contract Act to recover costs from the Municipality. The Subordinate Judge rejected these contentions and dismissed the suit. The opinion is the Chief Justice's decision on the appeal from that decree.

Legal Issues Presented

Whether the Provincial Government's requisition under S. 11(3)(b) of the Indian Railways Act, 1890, directing the railway company to widen its culvert at the company's cost, was ultra vires.
Whether the Provincial Government could only act under S. 12 and, if so, whether the cost should have been chargeable to the Municipality or the Government rather than the railway administration.
Whether the railway company could recover from the Municipality the cost of the work performed under the Government's order by invoking S. 70 of the Indian Contract Act (i.e., whether the work was done for the Municipality and the Municipality enjoyed its benefit).
Whether English decisions on railway accommodation works (specifically Bhondha and Swansea Railway Co. v. Talbet and Great Western Railway Co. v. Talbet) were applicable to the interpretation of S.11(3)(b) of the Indian Railways Act.

Arguments of the Parties

Appellant's (Railway Company's) Arguments

The order passed by the Provincial Government under S. 11(3)(b) was ultra vires because the railway could only be required to do work that was necessary at the time the railway was constructed (1902); the 1938 requisition required work not necessary in 1902.
If the Government had power to require the work at all, it could only be exercised under S. 12, which would make the cost chargeable to the Municipality or the Government rather than to the railway administration.
Alternatively, the railway sought to recover the cost from the Municipality under S. 70 of the Indian Contract Act on the basis that the Municipality benefited from the work and therefore ought to compensate the railway.
Reliance on English authorities (Bhondha and Swansea Railway Co. v. Talbet and Great Western Railway Co. v. Talbet) to support the proposition that accommodation works cannot be required beyond what was necessary when the railway was constructed.

Respondent's (Municipality) Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bhondha and Swansea Railway Co. v. Talbet	Held that under the English Railways Clauses Consolidation Act, 1845, a railway company could not be required to make accommodation works beyond what was really necessary at the time of construction; subsequent alterations in land or neighbourhood could not be taken into account.	The Court explained that English law differs materially from the Indian statute (notably, Indian law grants the Provincial Government power by requisition under S.11(3)(b) at any time). The Court therefore declined to apply the English case to S.11(3)(b). The Court added that even if the English rule were applicable, the widening ordered in 1938 was a work that was as necessary in 1902 as in 1938, so the plea would fail.
Great Western Railway Co. v. Talbet	Reaffirmed the principle in the preceding English case limiting accommodation works to what was necessary at construction.	The Court treated this case similarly: noting the differences between English and Indian law and holding the English decisions inapplicable to S.11(3)(b); alternatively, finding the facts such that the work was necessary in 1902 and thus the company's contention failed even if the English rule applied.

Court's Reasoning and Analysis

The Court began with statutory interpretation. It set out the relevant provisions: Sub-section (1) of S.11 (describing accommodation works) and Sub-section (3) provisos, in particular the proviso that a railway administration shall not, except on requisition of the Provincial Government, be compelled to defray additional accommodation works after ten years from opening. The Court observed that the proviso explicitly preserves the Provincial Government's power to requisition works at any time and at the railway administration's cost.

The Court contrasted the Indian statutory scheme with the English legislation (Railways Clauses Consolidation Act, 1845). It noted significant differences: the English Act prescribes a five-year limitation and settlement of disputes by justices, with no power conferred on any authority to requisition works at the railway company's expense at any time. By contrast, the Indian Act prescribes ten years and grants wide requisitioning power to the Provincial Government. Because of these legislative differences, the English authorities (Bhondha and Swansea; Great Western) are not directly applicable to interpretation of S.11(3)(b).

Addressing the English cases on their own terms, the Court nevertheless examined the facts: the western weir of the Anupannady tank had a capacity of 500 cusecs in 1902 and remained so; the Government's order expressly sought additional works to discharge 500 cusecs (the capacity of the weir). The culverts constructed in 1902 were inadequate to carry overflow in exceptional floods, and the 1938 order required widening to accommodate the weir's 500 cusecs. Accordingly, even if the English rule were applied, the work ordered in 1938 was one that was "required in 1902" as much as in 1938.

The Court rejected the submission that the Provincial Government's power was restricted to S.12. It explained that S.12 deals with requests made by owners or occupiers or with cases where the Provincial Government or a local authority desires to construct a public road or other work across the railway. Here, the Municipality did not own adjoining land and made no request; the Provincial Government was not seeking to construct a road. S.12 therefore was inapplicable.

On the contention based on S.70 of the Indian Contract Act, the Court recited the statutory test: S.70 applies where a person lawfully does something for another, not intending to do so gratuitously, and the other enjoys the benefit. The Court found that the railway did the work under a Government order (action taken by the Collector, a Government servant) and that the primary beneficiaries were private owners and occupiers of the flooded properties, not the Municipality. The Municipality did not own the affected houses; any municipal benefit (e.g., indirect tax receipts) was remote and indirect. The Court held S.70 requires a direct benefit to the person sought to be charged; this factual and legal standard was not met.

Holding and Implications

Holding: The appeal is dismissed with costs.

Implications and direct effects:

The Provincial Government's requisition under S. 11(3)(b) was treated as valid; the order to widen the railway culvert at the railway administration's cost was not ultra vires.
S. 12 was inapplicable to the facts and did not provide the exclusive route for requiring additional works in this case.
The railway company was not entitled to recover the cost of the works from the Municipality under S. 70 of the Indian Contract Act because the Municipality did not directly receive the benefit for which the works were done.
No broader change in precedent was announced; the Court interpreted the Indian statutory scheme as conferring wide requisitioning power on the Provincial Government and distinguished the English authorities on statutory grounds. The decision's practical consequence is that a Provincial Government requisition under S.11(3)(b) can require a railway administration to undertake additional accommodation works at its own expense even many years after construction when the requisition is within the statute's terms.

Delivered by The Chief Justice. (Opinion text identifies counsel for the appellant as Mr. Braddell and records the ultimate dismissal of the appeal.)

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South Indian Railway Co. Ltd., Through Its Agent And General Manager, Mr. J.F.C Reynolds v. The Municipal Council, Madura, Through Its Commissioner Mr. C.O Coorey

(Delivered by The Chief Justice.)

Within the Municipal limits of the town of Madura is a tank called the Anupannady 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 20 feet and that the depth should be made 5 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 costs of re-building 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 S. 11(3)(b) of the Indian Railways Act, 1890, directing the railway administration to widen its culvert to 20 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 the 25th July 1942 the South Indian Railway Company Ltd., 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 under 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 under 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 S. 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-S. (1) of S. 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 Cls. (a) and (b). We are here concerned with Cl. (b) which reads as follows,

“all necessary arches, tunnels, culverts, drains, water courses 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-S. (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. S. 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 or 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 authorised by the general controlling authority.”

S. 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 the 26th November 1938 is ultra vires Mr. Braddell on behalf of the appellant, has relied on two English cases, namely, Bhondha and Swansea Railway Co. v. Talbet(1) and Great Western Railway Co. v. Talbet (2). 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. S. 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. S. 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. S. 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. S. 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 S. 72 such additional works shall be constructed under the superintendence of the railway company's engineer. S. 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 S. 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 Bhondha and Swansea Railway Co. v. Talbet , one of the questions related to the accommodation works which the company might be required to make under 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 reaffirmed by the Court of Appeal in Great Westorn Railway Co. v. Talbet .

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 S. 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 today 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 S. 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 Anupannady 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 the 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 Anupannady tank. We hold that the English cases do not apply to S. 11(3)(b), but if they do, the widening of the railway culvert to 20 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 under S. 12 has in effect been answered. S. 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 work 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 S. 11 or S. 12 for the company's claim against the municipality. He admitted that the claim against the municipality could only be enforced by reason of S. 70 of the Indian Contract Act. S. 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 recognises 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 S. 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.

N.R.R

South Indian Railway... v. The Municipal Counci...