Broomfield, J.
1. The plaintiffs-appellants are the owners of properties in the Kalupur ward of the city of Ahmedabad. They brought this suit, which has been dismissed by the District Judge of Ahmedabad, for a declaration that certain notifications under the Land Acquisition Act issued by Government at the request of the Municipality are ultra vires and illegal and for an injunction restraining the defendants, the Secretary of State for India and the Municipality, from going on with the acquisition proceedings. The notifications in question relate to a scheme called the Kalupur Relief Road Scheme for the construction of a new arterial road through the city from the Fort of Bhadra to the neighbourhood of the Railway Station. Proposals in this connection, originally a part of a larger improvement scheme, had been under consideration for some years before 1923. In that year Mr. Mirams, the then Consulting Surveyor to Government, at the request of the Committee of Management, then temporarily in charge of the affairs of the city, submitted a detailed report on the subject (exhibit 89). There was considerable opposition to the proposal and nothing was done for several years. In 1928 Mr. Mirams' scheme was approved by the Standing Committee of the Municipality and afterwards by a resolution of the General Board on June 27, 1928. An attempt was made to get the resolution rescinded but it failed, and in August, 1928, Government issued a notification under Section 4 of the Land Acquisition Act (I of 1894) which was amended in some respects by later notifications in February and November, 1929. The opposition to the scheme persisted however and in view of certain representations made and of the advice of the Legal Remembrancer, Government by a memorandum issued in May, 1930, informed the Municipality that parts of the scheme as proposed were beyond its powers and that the scheme required radical revision. On July 19, 1930, the Municipality passed a resolution cancelling that of June 27, 1928, and requesting Government to withdraw the notifications and drop further proceedings. The notifications were not however withdrawn.
2. In June, 1932, certain councillors moved the Municipality to reconsider the matter. A revised scheme which had in the meantime been prepared by the Consulting Surveyor to Government was approved by the Standing Committee and passed by the General Board on August 4, 1933. In May, 1934, Government issued notifications under Section 6 of the Land Acquisition Act.
3. The suit from which this appeal arises was instituted on August 9, 1935. It was heard by the District Judge. He framed eleven issues of which two are general issues. Some have been decided in favour of the plaintiffs but on the material points he decided against them. Of the issues decided against the plaintiffs their learned Counsel has dealt with issues Nos. (2) (3) (6) and (7), which are as follows :-
(2) Did the notification issued by Government under Section 4 of the Land Acquisition Act 1928-29 in accordance with Resolution of the Municipality No. 286 of June 27, 1928, cease to have effect as soon as the Resolution was cancelled by the Municipality by its subsequent Resolution No. 479 of July 19, 1930?
(3) Are the defendants estopped from treating the said notification of 1928-29 as subsisting in spite of the Municipality's resolution No. 479 of July 19, 1930, by the conduct of the Municipality in granting permits to construct on the land notified to be acquired?
(6)(a) Is it open to the civil Court to enter into the question whether the acquisition is being made for a public purpose?
(b) If so, do the plaintiffs prove that the purpose of the acquisition is not a public purpose?
(c) If so, are not the acquisition proceedings ultra vires and illegal?
(7) Are the acquisition proceedings illegal and void by the reason of the lapse of more than five years between the notification under Section 4 of the Land Acquisition Ac: and the notification under Section 6?
But for the most part the learned Counsel argued the case for the appellants on lines which, though generally covered by the issues framed, are not specific-ally set out.
4. His case briefly is this. The acquisition of these lands is for and on behalf of the Municipality. The purpose for which the landsi are to be acquired is only to be regarded as a public purpose because they (the Municipality) wanted the lands. In July, 1930, the Municipality decided to drop the scheme, and there was then no public purpose remaining. There is no power to acquire land for the Municipality if that body does not need it. The notifications issued prior to that date on the basis that the Municipality required the lands automatically ceased to have effect. The subsequent resolution of the Municipality required a fresh notification under Section 4 of the Land Acquisition Act. As the original notification ceased to be effective, it could not be made the basis of a final notification under Section 6. We are concerned not with Mr. Mirams' original scheme revised but with a new scheme altogether. There having been no notification under Section 4 in respect of it, all the proceedings now being taken are ultra vires. That is the learned Counsel's first and main point.
5. His second point is this. Assuming that the notification under Section 6 is otherwise legal, it is illegal in so far as it seeks to acquire lands not actually required for the road but required for the purpose of recouping the cost of the scheme.
6. I think the answer to these contentions is to be found in the relevant provisions of the Land Acquisition Act and the Bombay Municipal Boroughs Act. Section 4 of the Land Acquisition Act (I of 1894) provides in the first subsection :
(1) Whenever it appears to the Local Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice (Of the substance of such notification to be given at convenient places in the said locality.
The second clause goes on to provide that after the publication of this notice Government officers may enter upon the lands for various purposes connected with the acquisition. Section 5A of the Act provides for the hearing and disposal of objections made by persons interested in any land which has been notified. Section 6, Sub-section (I), is in the following terms :
6. (1) Subject to the provisions of Part VII of this Act, when the Local Government is satisfied, after considering the report, if any, made under Section 5A, Sub-section (2), that any particular land is needed for a public purpose, or for a Cornpany, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders :Provided that no such declaration shall be made unless the compensation to be: awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
In Sub-section (3) of Section 6 it is provided that the said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration, the Local Government may acquire the land in manner hereinafter appearing. It is not disputed that in the present case the notifications issued under Section 4 and Section 6 of the Act complied with the formal requirements of those sections. I may also refer to Section 48, Sub-section (1), which says that except in the case provided for in Section 36(with which we are not concerned), the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. Section 50, Sub-section (1) provides as follows :
Where the provisions of: this Act are put in force for the purpose of acquiring. land at the cost of any fund controlled or managed by a local authority or of any Company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or Company.
7. The most important provisions of the Bombay Municipal Boroughs Act (XVIII of 1925) for our purposes are Section 71(a) and Section 114. They are as follows :-
71, A municipality may, at its discretion, provide, either wholly or partly, out: of the municipal property and fund for-
(a) laying out, whether in areas previously built upon or not, new public streets, and acquiring the land for that purpose, and the land required for the construction. of buildings or curtilages thereof, to abut on such streets.'1
114. (1) It shall be lawful for a municipality to lay out and make new public: streets; to construct tunnels and other works subsidiary to public streets; to widen, open, enlarge or otherwise improve, and to turn, divert, discontinue or stop up any public street; and, subject to the provisions of Sub-section (2) of Section 48 to-lease or sell any such land, theretofore used or acquired by the municipality for the purposes of such streets, as may not be required for any public street or for any other purposes of this Act.
(2) In laying out, making, turning, diverting, widening, opening, enlarging or otherwise improving any public street, in addition to the land required for the carriage-way and foot-ways and drains thereof, the municipality may purchase the1 land required for the construction of houses and buildings to form the said street; and, subject to the provisions contained: in Sub-section (2) of Section 48, may sell and dispose of such additional land in perpetuity or on lease for a term of years, with such stipulations as to the class and description of houses or buildings to be erected thereon as it may think fit.
I may refer also to Section 52 which says that when there is any hindrance to the permanent or temporary acquisition by a municipality upon payment of any land or building required for the purposes of this Act, the Government may, after obtaining possession of the same for itself under the Land Acquisition Act or other existing law, vest such land or building in the municipality.
8. This then is the law governing the case and the question is whether it can: be said that there is any legal flaw in the procedure which has been followed. In my view there is no ground whatever for holding that there has been any illegality. What is required for a valid notification under Section 4 of the Land Acquisition Act is that it should have appeared to the Local Government 1937 that the land in question was needed or likely to be needed for a public purpose. It cannot be suggested and has not in fact been suggested that Government did not take that view. Similarly, what is required for a valid notification under Section 6 is that the Local Government should have been satisfied that the lands notified were needed for a public purpose. There is not the faintest reason to doubt that in the present case the Local Government was so satisfied. And as provided by Sub-section (3) of Section 6 the declaration which has been made by the Local Government on that occasion is conclusive evidence that the land in question was needed for a public purpose. The conditions laid down by the Land Acquisition Act are therefore satisfied.
9. Mr. Thakor contends that Government was deprived of the power to go on with the acquisition proceedings because in the interval between the issue of the first notifications and the issue of the final notifications the Municipality changed its mind as to the necessity for the scheme. I cannot agree. There is no need to consider hypothetical questions, e-g., whether Government could legally have gone on with the acquisition if the Municipality had persisted in its opposition. Cases may easily be imagined where after irrevocable action has been taken and expenditure incurred on the requisition of a local body it could not be permitted to change its mind and drop the proceedings or escape liability for payment. Under the Land Acquisition Act it is the Local Government which has to be satisfied as to the existence of a public purpose. But as a matter of fact we are not concerned with any such question. At the material time, that is to say, when the notifications were issued, the Municipality approved of the scheme and had moved Government to take action, and the Municipality still approves of it. The fact that at some time between the dates of the two notifications it was of a different opinion is in my view irrelevant.
10. There has been much argument in the lower Court and here as to whether the present scheme is a new scheme or the old scheme revised. Mr. Mirams in his original report proposed to acquire a total area of 104,575 square yards out of which 33,517 square yards were required for the road width. The surplus land was to be used partly for the erection -of buildings to house the people evicted under the scheme, Part of it was to be acquired for recoupment of the cost of the scheme. The estimated realizations from the surplus land amounted to Rs. 58 lakhs, giving a profit of about rupees five lakhs. In addition it was proposed to levy a contribution for 'betterment' on the owners of properties in the vicinity which were likely to be enhanced in value. Government, on the advice of the Legal Remembrancer, intimated in their memorandum of May 1930 that the Municipality was not, in their opinion, legally competent to carry out the following operations :-(a) the acquisition of lands for housing the dishoused (b) the acquisition of lands which do not abut on the new public street (c) the adoption of the principle of recoupment of the cost of the scheme (by which was meant, apparently the acquisition of lands for the purpose of recoupment pure and simple) and (d) the proposal to levy betterment charges. Accordingly in the revised scheme the acquisition of surplus land for housing purposes and for recoupment pure and simple was dropped. The proposal to levy betterment contribution was also dropped. The area to be acquired for the road under the revised scheme was 32,553 square yards. The surplus land which was described as being for the purpose of formation of the street (obviously; with reference to Section 114 of the Municipal Boroughs Act) was 30,622 square yards. The net realizations from the sale of frontages were estimated to amount to rupees thirty-six lakhs, leaving a net loss on the scheme of rupees five lakhs. Apart from a slight change in the alignment the proposed road remained as before. The area to be acquired for it was almost exactly the same.
11. The public purpose also apparently remained the same. The main object of the original scheme was to make an arterial road through the city with a view to relieve heavy traffic on the Kalupur Road, open up congested areas in the heart of the city and provide necessary relief for cross traffic roads-see the evidence of Mr. Kazi (exhibit 179) and the introduction to Mr. Mirams' report (exhibit 89). This object is unchanged. What was changed was the method of carrying out the scheme and financing it. No doubt Mr. Mirams attached considerable importance to the housing of the dishoused, and that part of the scheme had to be dropped as being in the opinion of the Government Law Officer beyond the powers of the Municipality. But that was only an incidental feature which did not affect the main object of the relief road. I think the learned trial Judge is justified in saying that the scheme remained essentially the same.
12. In any case this is really a dispute about words and of no vital importance. The Land Acquisition Act postulates a public purpose, as to the existence of which Government is the judge. I will assume for the sake of argument, without admitting or deciding, that the public purpose must remain substantially the same throughout the proceedings. That was so in the present case. The Act nowhere postulates identity in the scheme by means of which the public object is to be carried out. All that is legally necessary is that the lands which it is intended to acquire for a public purpose should be notified first under Section 4 and then under Section 6 of the Land Acquisition Act. That has been done. I think there is no substance in the argument that a fresh notification under Section 4 was necessary. The requirements of the Act are satisfied and it cannot be said that any of the notifications are illegal and ultra vires.
13. Coming then to Mr. Thakor's second main argument, viz. that the notification under Section 6 is illegal because it seeks to acquire lands for the purpose of recouping the cost of the scheme, the first answer is that the validity of the acquisition proceedings depends upon the existence of a public purpose and not upon the question whether the whole cost of the scheme could legally be debited to the Municipality. So far as defendant No. 1 is concerned at any rate the latter question is not strictly relevant. But, having regard to the provisions of Sections 71 and 114 of the Bombay Municipal Boroughs Act, there can be no doubt in my opinion that the scheme as revised is within the powers of the Municipality. The language used in Sub-section (2) of Section 114 suggests that for the purposes of that section land adjacent to the roadway is to be regarded as included in the street, the roadway and the adjacent land and buildings together forming the1 street. However that may be, power to acquire adjacent land for the construction of buildings and to dispose of that land is specifically given and, that power being there, the fact on which Mr. Thakor lays so much stress, viz. that the scheme is to be financed or partly financed out of the proceeds, cannot make the acquisition illegal.
14. The only question is whether additional lands to a maximum depth of sixty feet (except in exceptional cases) i on either side of the roadway, those being the limits of the proposed acquisition in the present case, can be said to be reasonably required for the formation of the street. As to that, we have the evidence of the Special Land Acquisition Officer, Mr. Kazi. He says :
Sixty feet will be road width. Sixty feet on either side will be the approximate measurement of land to be acquired and divided into plots as shown in orange colour for building houses by private owners so as to abut on the road.
The witness referred to a plan which he had prepared showing the adjacent land divided into plots. Then he says :
Two successive Consulting Surveyors Messrs. Mirams and Stamper have held that a depth of sixty feet on either side of the actual road would be sufficient for the formation of the street. I hold the same view. There is not anything in exhibit 89 to support this, but there are separate instructions in the matter. They are not published. Ordinarily a larger depth than sixty feet beyond the road would not be required but there may be exceptional cases like the one in which there might be a little excess of the property to be acquired going beyond the sixty feet and in that case necessity would arise to acquire the whole holding.
Further on, he says :
It would be necessary to acquire all sites within the depth of sixty feet but there would be exceptions to this also. They are (1) buildings of religious significance and graveyards (2) betterment properties notified originally as such.... The third exception would be where substantial buildings suitable to the formation of the new street already exist. Where the formation of the road does not require a depth of sixty feet we would acquire less area and this would be the fourth exception.
15. I can see no good reason why Mr. Kazi's evidence on this point should not be accepted. We are dealing with a main arterial road in a great city, and it cannot be said that a maximum depth of sixty feet on each side of the road is excessive for the reasonable requirements of such a street. The average depth of the land acquired is evidently considerably less than sixty feet. Mr. Thakor says that the principle followed by the officers concerned in the acquisition has been recoupment of the cost and not the formation of the street. I cannot, however, see any good reason to believe this. It has been pointed out that only the cheaper properties have been acquired. Mr. Thakor drew our attention to the fact that whereas the cost of acquisition of the lands required for the road width is rupees twenty-four lakhs, the cost of acquisition of the lands required for the formation of the street is only about rupees thirteen and a half lakhs. But why should not that be so? The formation of a street in a proper manner presumably depends on having substantial and well-constructed buildings abutting on it. The local bodies are given powers under Section 114 of the Bombay Municipal Boroughs Act to make stipulations as to the cost and description of houses and buildings to be erected on such lands. Where suitable buildings exist already, there can obviously be no object in acquiring them. Mr. Kazi says in the course of his deposition that this principle was followed. He has been exhaustively cross-examined and in my opinion it has not been in any way shown that the properties to be acquired have not been R. 159 notified in the bona fide exercise of the powers of the Municipality under the Act. That disposes of the two main points.
16. Then there is the point of estoppel raised by issue No. 3. Mr. Thakor'a argument in this connection is that the Municipality dropped the Kalupur Relief Road Scheme by their resolution in July, 1930, and proceeded to act on the basis that it had been dropped. The Chief Officer gave permission to certain persons to erect buildings and make repairs to buildings on some of notified lands. Certain persons who had brought suits against the Municipality in that year were informed of the Municipal resolution' and in consequence withdrew the suits, the Municipality paying the costs. It is argued that the Municipality is therefore estopped by its conduct from proceeding, with the acquisition and that any estoppel which binds the Municipality must bind Government also, as Government are acquiring the lands for the benefit of the Municipality. Under these circumstances it is contended that it is no longer open to the defendants to say that the acquisition proceedingsi can continue on the footing that the notifications under Section 4 of the Land Acquisition Act are still in force.
17. It is difficult to see how these acts of the Municipality and of its Chief Officer can bind the Local Government which did not in any way authorize or acquiesce in them. I have already referred to Section 48 of the Land Acquisition Act under which Government and Government alone has power to withdraw from acquisition proceedings. In the notification issued under Section 4 it is expressly recited that if the Local Government is satisfied that the said lands are needed for the aforesaid purpose a final notification to that) effect under Section 6 will be published in the Bombay Government Gazette, and that if the acquisition is abandoned, wholly or in part, the fact will be duly notified in the Bombay Government Gazette. Exhibit 159 is a specimen of the notice issued under Section 4(1) of the Land Acquisition Act which appears to have been sent to persons interested in the lands to be acquired. It contains this clause :
You are further informed that after the date of the abovementioned notification; no notice will be taken of all the agreements actually entered into or to be entered into without my consent (i.e. without the consent of the Special Land Acquisition Officer) with the intention of selling the rights in or over the lands above notified in any way whatever, and that you will not get any compensation for the expenses and improvements made in connection with the aforesaid land.
18. In order that there may be an estoppel within the scope of Section 115 of the Indian Evidence Act, there must be some representation as to an existing fact. Mr. Thakor was not, I thought, very clear on this particular part of the case; but, as I understand him, his suggestion was that the Municipality by their conduct suggested that the scheme for the acquisition of these lands would under no circumstances be proceeded with. It is difficult to see how any such; representation can be1 inferred from the conduct which has been proved by evidence. In any case it would appear to be a representation not as to an existing fact but one de futuro, in respect of which it has been held that there cannot be an estoppel. In that connection I may refer to Rivett-Carnac v. New Mofussil Company I.L.R. (1901) Bom. 54 : 3 Bom. L.R. 846 and to Jethabhai v. Nathctbhai (1904) I.L.R. 28 Bom. 399 : 6 Bom. L.R. 428 We are not concerned in this case with any question of the rights of any persons, who received permission from the Chief Officer to build or to make alterations to their buildings, in respect of compensation on the acquisition of their lands. It may be, as the learned trial Judge suggests, that they may be entitled to extra compensation in view of the conduct of the Municipality in allowing them to suppose that their lands would not be required, or not immediately required. For our purposes it is sufficient to say that there is no foundation for the contention that there is anything in the nature of an estoppel which prevents either Government or the Municipality from exercising their legal powers.
19. Issue No. 7, which Mr. Thakor dealt with next, raises the question whether the acquisition proceedings are illegal and void by reason of the lapse of more than five years between the notification under Section 4 and the notification under Section 6. The argument in this connection is that as this delay might cause injustice-though as a matter of fact there seems to be no evidence suggesting that it has in fact caused injustice-the law should be interpreted in a way to prevent injustice; and it was suggested that the Courts ought to treat a notification under Section 4 of the Land Acquisition Act as being invalid, or as becoming invalid, unless it has been followed within a reasonable time by a final notification under Section 6. We were referred to the case of Richmond v. North London Railway Co. (1868) L.R. 5 Eq. 352 Cases like this, under English Acts dealing with corporations invested with powers which have to be exercised within a prescribed period, are not in my opinion of much assistance. Even if it had to be held that the delay in this case was unreasonable, I doubt very much whether it could have been said that it was open to the Court to treat the proceedings as illegal and void. In our view, however, that question does not really arise because we are not satisfied that the lapse of time was under all the circumstances of the case unreasonable. It is an elaborate and complicated scheme. The detailed revision of the scheme necessarily took up much time. Most of the delay however was obviously due to the fact, for which Government cannot in the least be held responsible, that the Municipality changed its mind in the interval between the first and final notifications. We think the learned trial Judge was obviously right in refusing to hold the notifications to be illegal and void by reason of this lapse of time.
20. There is only one other point which need be mentioned. By Section 114 of the Bombay Municipal Boroughs Act the Municipality is given power to purchase the land required for the construction of hcuses and buildings to form a street. It was contended in the lower Court-and Mr. Thakor has repeated the argument-that 'purchase' here means to acquire by private negotiations and does not include acquisition by a compulsory process under the Act. This point has been considered by the learned trial Judge in paragraph 42 of his judgment and we need only say that, considering the terms of Sections 71, 114 and 52 of the Bombay Municipal Boroughs Act together, we feel no doubt at all that 'purchase' in Section 114 does include compulsory acquisition if necessary.
21. For the above reasons we hold that the appeal fails and must be dismissed with costs, in two sets.
22. The learned Government Pleader raises the question of the valuation of the appeal for advocate's fees and cites Nur Mahomed v. Secretary of State (1925) 28 Bom. L.R. 582 and Kasanji v. Surat Municipality. : AIR1928Bom247 . It is clear, I think, on these authorities that for the purpose of advocate's fees the appeal should be valued according to the value of the subject-matter of the appeal, which is the same as the subject-matter of the suit. The question is, however, what is the value of the subject-matter of the suit? The position is by no means the same as in the cases cited. In Nur Mahomed v. Secretary which was a suit by a of State claimant in land acquisition proceedings to restrain Government from acquiring his land, on a point of procedure, the value of the subject-matter could, under the circumstances of that case, reasonably be held to be the value of the property of which Government sought to take possession. In Kasanji v. Surat Municipality, which was a suit to restrain a municipality from spending certain amounts of money, it could reasonably be said that the value of the subject-matter was the amount of money involved.
23. Here also one may say that the value of the subject-matter of this litigation is the amount of money involved in it. But what is the amount of money involved? Obviously, it is not the gross amount of money which it is estimated the Municipality will have to spend in consequence of the notifications in question. For it is an essential feature of this particular land acquisition scheme that some of the properties to be acquired are to be disposed of in such a way as to recoup the expenditure, at least to a considerable extent. According to the statement attached to the Consulting Surveyor's first report on the revised scheme, the net loss to the Municipality should not exceed Rs. 5,27,000. That, it seems to me, would be the maximum amount to be affected by the decree in this suit and appeal, leaving aside for the moment that it is a representative suit. But it cannot even be said with any reasonable degree of certainty that even this amount of rupees five lakhs is involved in the litigation. There is on record a subsequent report by the Consulting Surveyor to Government (exhibit 88) which suggests that the scheme may be proceeded with gradually as funds are forthcoming and that ultimately there may be no loss at all.
24. However that may be, even if I am wrong on this particular point, we are faced here with a further difficulty that this is a representative suit and as the learned Counsel for the appellants says, there is no community of interest between the plaintiffs and the other persons represented by them in respect of the properties with which we are concerned. The community of interest by reason of which it has been allowed to be treated as a representative suit is only in respect of the validity of the notifications.
25. Under the circumstances we are of opinion that this is a case in which the value of the subject-matter is not capable of ascertainment. The point was not raised in the trial Court. If it had been raised, we might possibly have had more satisfactory data. As the case is not governed by any other rule, the advocate's fees must be the minimum prescribed by Rule VI in Appendix E of the Appellate Side Rules.
Wassoodew, J.
26. I agree.