TMI Blog1915 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Saha (the respondent in these appeals), who was owner of a substantial portion of the property acquired. As Mr. Skrine, the then Commissioner of the Chittagong Division, observed, the country was honeycombed with tanks, and it was simply monstrous to wish to pull down godowns and buildings to excavate another tank. The result was that, on the 7th March 1898, the District Board decided to abandon the project; but as possession of the land acquired had already been taken, the Government was not at liberty to withdraw from the acquisition under Section 48 (1) of Act I of 1894. The Bengal Government accordingly informed the Commissioner, on the 21st May 1898, that the Government could not withdraw from the acquisition of the land at that stage, and forwarded the opinion of the Superintendent and Remembrancer of Legal Affairs, that if the Board did not want the land, they could arrange with the original owners or others to take the land off their hands at the price paid for its acquisition. On the 29th August 1898, the Board intimated to Ramkumar Saha that as they had abandoned the project, it had become necessary to return the land to its original owner, and they enquired of him, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Chittagong Division that the land should be offered to the original owners at cost price, and that if they declined it should be sold by public auction. The letter added that in either case, the net sale-proceeds should be given to the donor or his personal representatives, who had paid the cost of acquisition. On the 24th February 1902, the District Board issued a letter to Ramkumar Saha and informed him that if he did not, within thirty days, deposit ₹ 538-5-6 as price of the land and ₹ 13-9-6 as cost of acquisition (total ₹ 551-150) to take back his land, the land would be sold by public auction. Obviously, the District Board authorities overlooked that a much larger sum than what was demanded had already been deposited by Ramkumar Saha. The record does not show what reply was submitted by the latter. We know, however, that on the 20th October 1902, the Land Acquisition Collector intimated to Ramkumar Saha and several other persons (some of them apparently his superior landlords and other his tenants) that they should, on payment of ₹ 872-2-3 within 6th November 1902, take back the land, and that, otherwise, it would be sold by public auction. The no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refunded, because, in his opinion, the land should be retained and the tank constructed; he added in his note that the acceptance of the refund by Ramkumar Saha would estop the latter in any claim on the unexecuted conveyance; and he specifically directed that the applicant might be asked to take the money. This instruction, however, was not carried out; the order of the Chairman was not notified to Ramkumar Saha, nor was the money ever paid or tendered to him, though an attempt is made in the oral evidence to show that a clerk of the District Board Office verbally communicated the substance of the order of the Chairman to an officer of Ramkumar Saha. The fact remains that the money is even now in the hands of the District Board authorities. On the 22nd February 1909, the District Board put the land to auction. Ramkumar Saha, who was in occupation all this time, as scon as he was apprised of the intentions of the Board, appeared and objected to the sale, on the ground that the Board had already contracted to sell the property, to him. The objection was summarily overruled and the property was sold to Ramsundar Saha as the highest bidder for ₹ 1,280. On the 14th May 1909, wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprised in these three suits were identical with what was comprised in his suit. Consequently, the subject-matter of the controversy before the District Judge was restricted to that portion of the land which originally belonged to Ramkumar Saha. The District Judge, in the suit of Ramkumar Saha, modified, to his detriment, the decree of the primary Court. He confirmed the decree in his favour for Its 992-11-1; but he made the recovery of this sum from the District Board conditional on his making over possession of the land to the Board within 6 months. In the other three suits, brought by Ramsundar Saha, he allowed the appeals of Ramkumar Saha and dismissed the claim for possession on the ground that the sale of the 22nd February 1909 was inoperative in law. The representatives of Ramsundar Saha, who had died in the interval, have preferred four appeals to this Court and have contended that the sale mentioned was valid and operative. Ramkumar Saha has preferred a memorandum of cross-objections in the appeal which arises out of his suit and has argued that he had a good title to the land and was, at any rate, entitled to a decree for specific performance against the District Board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the District Board, offered to re-transfer the land to Ramkumar Saha, his landlords and his tenants, if ₹ 990-12-0 was paid. What took place on these offers, does not transpire from the record; but two years later, Ram-kumar Saha petitioned for refund of his deposit; this was of no avail, and a renewed application three years later was equally fruitless. On a third application by him, some months later, the Chairman of the District Board directed a refund, but his order was neither communicated nor carried out. More than a year afterwards, notwithstanding protest by Ramkumar Saha, the District Board put up the land to auction, when it was purchased by Ramsundar Saha, who had, 11 years earlier, set the machinery of the Land Acquisition Act in motion to deprive his rival of the land in suit. The purchaser, however, was not able to obtain actual possession, and was obliged to sue for recovery of possession, with the result that a cross-suit was instituted by Ramkumar Saha with a view to perfect his own title or to recover damages from the District Board. The outstanding features of the case, then, are, that Ramkumar Saha has never been paid any compensation for his land, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclaimer it operated as a deed of transfer; the Court did not formulate any general proposition of universal application that a deed of release has always the same operation as a conveyance. But, even if the release in this case could, by any stretch of language, be construed as a conveyance, there would be a fatal objection to its validity. Neither the release nor the sale certificate fulfils the requirements of Rule 98 of the Statutory Rules made by the Lieutenant-Governor on the 15th December 1885 under Section 138(d) of Act III of 1885 B.C. (Bengal Local Self-government Act). Rule 98 is in these terms: ''Every transfer of Immovable property, vested in a Board, shall be made by an instrument under the common seal, signed by the Chairman and by two members of the Board, and,, where these rules require the previous approval of the Commissioner of the Division, the fact that the transfer is signed with such approval shall be distinctly expressed. This rule must be read along with Rule 93, which, so far as relevant to the present matter, provides that no Immovable property vested in a District Board shall, except with the previous approval of the Local Government and in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land exceeds a prescribed limit, or that the conveyance is, in certain cases, to be executed by the Chairman alone, while, in other cases, it is to be signed by the Chairman and a member of the Board, Rules framed in this behalf may, without undue stretch of language, be deemed to be rules regulating the powers of the District Board. The term regulate' is defined as follows in the Oxford Dictionary, Vol. VIII, page 379: 'to control, govern cr direct by rules or regulations; to subject to guidance or restrictions; to adapt to circumstances or surroundings. Consequently, a rule to regulate a power may be a rule to restrict the exercise of the power as also a rule to guide the exercise of the power; though, as Lord Davey said in Municipal Corporation of Toronto v. Virgo (1896) AC 88 : 65 L.J.P.C. 4 : 73 L.T. 449 authority to regulate does not include a power to prevent - or prohibit, because, in the language of Lord Watson in . Attorney-General (Ontario) v. Attorney-General (Dominion of Canada) (1893) A.C. 318 : 65 L.J.P.C. 26 : 74 L.T. 533 a power to regulate assumes the conservation of the thing which is to be made the subject of regulation. Subject to this qualification, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ch. 68, is not void, though not signed by the Commissioners, or by any three of them, or by their clerk , as prescribed by that section. In our opinion, the contention of the appellants is not well founded. Rule 98 must be read along with Rule 93, and the latter rule does use appropriate words to indicate that no Immovable property vested in a District Board can be transferred by way of sale, except in such manner as the Local Government may approve. The intention is clearly manifest that a transfer shall not be made except in the manner prescribed by Rule 98. The whole aim and object of the law would plainly be defeated, if here the command to do the thing in a particular manner did not imply a prohibition to do it in any other; indeed, the language used in Rule 93 leaves no room for doubt as to the intention: Jolly v. Hancock (1852) 7 Ex, 820 : 22 L.J. Ex. 38 : 16 Jur. 550; In re Dickinson, Ex parte Rosenthal (1882) 20 Ch. D. 315 : 51 L.J. Ch. 736 : 47 L.T. 266 : 30 W.R. 667. The decisions relied upon by the appellants are clearly of no avail. The observations of Lord Campbell, L. C in Liverpool Borough Bank v. Turner (1860) 1 J. H. 159 : 29 L.J. Ch. 827 affirmed in (1860) 2 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asses of cases is illustrated by the decisions in Ward v. Beck (1863) 13 C.B. (N.S.) 668 : 134 R.R. 691 : 32 L.J.C.P. 113 : 9 Jur. (N.S.) 912 : 143 E.R. 265; Stapleton v. Haymen (1861) 2 H.C. 918 : 133 R.R. 858 : 33 L.J. Ex. 170 : 10 Jur. (N.S) 497 : 9 L.T. 655 : 12 W.R. 317; The Andalusian (1878) 3 P.D. 182 : 47 L.J. Adm. 65 : 39 L.T. 204 : 27 W.R. 172 : 4 Asp. M.C. 22; Le Feuvre v. Miller (1857) 8 El.Bl. 321 : 112 R.R. 582 : 26 L.J.M.C. 175 : 3 Jur. (N.S.) 1255 : 120 E.R. 120 Cope v. Thamas Haven Dock Railway Company (1849) 3 Exch. 841 : 77 R.R. 859 : 6 RC. 83 : 18 L.J. Ex. 345; Biggie v. London and Blackwall Railway Company (1850) 6 Exch. 412 : 19 L.J. Ex. 303 : 6 Railw. Cas. 590 : 14 Jur. 937; Frend v. Dennett (1858) 4 C.B. (N.S.) 576 : 114 R.R. 859 : 5 L.T. 73 : 27 L.J.C.P. 314 : 4 Jur. (N.S.) 897 : 140 E.R. 1217; Cornwal Mining Company v. Bennett (1869) 5 H.N. 423 : 120 R.R. 670 : 29 L.J. Ex. 157 : 6 Jur. (N.S.) 539; Irish Peat Company v. Phillips (1861) 1 B. S. 598 : 124 R.R. 680 : 30 L.J.Q.B. 363 : 7 Jur. (N.S.) 1189 : 4 L.T. 806 : 9 W.R. 873 : 121 E.R. 837; Alma Spinning Company, In re. Bottomley's case (1880) 16 Ch. D. 681 : 50 L.J. Ch. 167 : 43 L.T. 620 L 26 W.R. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L.T. 65 : 4 Asp. M.C. 489 and Young v. Mayor of Leamington Corporation (1883) 8 App. Cas. 517 : 52 L.J.Q.B. 713 : 49 L.T. 1 : 31 W.R. 925 : 47 J.P. 660. In the case last mentioned, the House of Lords ruled that Section 174 of the Public Health Act, 1875, which enacts that every contract made by an urban authority whereof the value or amount exceeds # 50, shall be in writing and sealed with the common seal of such authority, is obligatory and not merely directory. Lord Bramwell observed: The Legislature has made provisions for the protection of ratepayers, shareholders and others, who must act through the agency of a representative body, by requiring the observance of certain solemnities and formalities, which involve deliberation and reflection. That is the importance of the seal. It is idle to say, there is no magic in a wafer. It continually happens that carelessness and indifference on the one side and the greed of gain on the other cause a disregard of these safeguards, and improv id en t engagements are entered into.... The decision may be hard in this case on the plaintiffs, who may not have known the law. They and others must be taught it, which can only be done by its enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the title had not been transferred thereby. The appellants had ample opportunity to produce a property executed conveyance from the District Board, if they could, but they have not done so. The case before us clearly does not fall within the class of decisions where it has been ruled that a suit need not be dismissed merely because the authority for its institution, such as a certificate under the Pensions Act, 1861, or Section 78 of the Land Registration Act, or Section 60 of the Bengal Tenancy Act, or Section 4 of the Succession Certificate Act, is not produced with . the plaint. The cases on this subject will be found reviewed in the judgment of this Court in Sarat Chandra Banerjee v. Apurba Krishna Roy 11 Ind. Cas. 187 : 14 C.L.J. 55 : 15 C.W.N. 925 and need not be reexamined here. They are distinguishable, as the plaintiffs here had no title at all at the date of the institution of the suit. We hold accordingly that the District Judge has correctly found that Ramsundar Saha had no enforceable title at the date of the commencement of his suits, which must be deemed to have been rightly dismissed. The inference follows that the title to the land in dispute is still vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t everything has been done that was necessary to make it a binding contract upon both parties. The Statutory Rules, however, do not expressly require that a contract of this description should be sealed. The omission to affix the seal would not, therefore, affect the validity of the contract. The strict rule of the ancient Common Law, no doubt, was that a Corporation could only act under its seal and was not bound by written contracts not under seal. This rule, however, was relaxed in many cases at an early date and where a Corporation is acting within the scope of the legitimate purposes of its institution, even parol contracts made by its authorised agents raise implied promises, for the enforcement of which an action may well lie, specially where there is no express statutory requirement of a contract under seal and the benefit of the contract has been enjoyed by the Corporation : 6 Vin. Abr. 267 : 1 W. S. 615; I Blackstone Com. 475; Lawford v. Billericay Rural Council (1903) 1 K.B. 772 : 72 L.J.K.B. 554 : 88 L.T. 317 : 51 W.R. 630 : 67 J.P. 245 :1 L.G.R. 535 : 19 T.L.R. 322; Douglass v. Rhyl Urban Council (1913) 2 Ch. 407 : 82 L.J. Ch. 537 : 109 L.T. 30 : 77 J.P. 373 : 11 L.G. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 30 W.R. 500 : 46 J.P. 516 to repeal the Act of Parliament and to deprive the ratepayers of that protection which Parliament intended to secure for them. In the case before us, however, the statutory rules do not render a seal necessary for the validity of this class of contracts, and the doctrine of part performance may well be applied; the District Board have had the benefit of the money paid by Ramkumar Saha and have allowed him to remain in occupation of the land and to incur expenditure thereon for many years on the basis of the contract. It is worthy of note that the contract in this case is not ultra vires in the sense that it is beyond the scope of the authority of the District Board as a corporate body under any circumstances; such contract is not affected by the class of decisions, whereof Ashbury Railway Carriage and Iron Company v. Riche (32) may be taken as the type. We hold accordingly that there was an enforceable contract on the 6th September 1898. 8. Two questions next require consideration, namely, first, has there been an implied rescission of this contract by a substituted agreement, and, secondly, has there been an implied rescission of the contract by aban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into a contract, which, if valid, would have the effect, by implication, of rescinding a former contract, and it turns out that the second transaction cannot operate as the parties intended, it does not have the effect, by implication, of affecting their rights in respect to the former transaction. As observed by Willes, J. in Noble v. Ward (1867) 4 H. C. 149 : L.B. 1 Exch. 117 : 143 R.R. 534 35 L.J. Ex. 81: 15 L.T. 672 : 15 W.R. 520 this is in accordance with a series of cases which will be found referred to in the second of the Egreemont cases, Doe d Biddulph v. Poole (1848) 11 Q.B. 713 : 75 R.R. 607 : 17 L.J.Q.B. 143 : 12 Jur. 450 : 116 E.R. 641. A similar view was taken in Britt v. Ayllet (1850) 11 Ark 475 : 52 Am. Dec. 282. In the case before us, the second agreement was inoperative in law, as it contravened the provisions of Rule 103 of the Statutory Rules previously mentioned. We cannot consequently hold that the original agreement of the 31st August 1898 was, by implication, rescinded by the subsequent agreement of the 4th December 1900. 10. As regards the second point, we have to consider whether the agreement of the 6th September 1898 was impliedly rescinded by abando ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the acts and conduct of the party evince an intention no longer to be bound by the contract. As renunciation is thus based on an absolute abandonment of the contract, it follows, as Bowen, L.J., said in Boston Deep Sea Fishing Company v. Ansell (1881) 39 Ch. D. 339 : 59 L.T. 345 that a rescission of the contract implies that you relegate the parties to the original position they were in before the contract was made; that cannot be where half the contract has been performed. It is also well settled that the Court insists upon clear and precise evidence of a mutual intention to determine and abandon the contract: Robinson v. Page (1826) 3 Rus 114 : 27 R.R. 26 : 38 E.R. 519 and Buchhouse v. Crossby (1737) 2 ECA. 32 : 22 E.R. 28. Sugden, L.C. said in Carolan v. Brabazon (1846) 3 J.L. 200 : 9 I. E. R. 224: The Court requires as clear evidence of the waiver as of the existence of the contract itself; and will not act upon less. To the same effect is his observation in Moore v. Crofton (1846) 3 J.L. 438 : 7 I. E. R. 344. Smith, M.R., in Clifford v. Kelly (1858) 7 I. C. R. 333 and in Gartan v. Bury (1860) 10 Ir. Ch. Rep 387 quotes with approval the statement of Lord St. Leonards in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the contract was made. Their conduct has been inconsistent with the theory of rescission, and when, for the first time, more than a year after the order for refund had been recorded by the Chairman, the District Board attempted to sell the land as if they were emancipated from continued liability under the contract, the plaintiff forthwith protested and relied upon the contract, and there is no room for doubt that whatever might have been said, nothing had been done, up to that stage, on either side, on the hypothesis that the contract had been abandoned. The demand of a return of the deposit is not by itself conclusive evidence of an intention to abandon the contract; but where, as in Whalen v. Stuart (1909) 194 N.Y. 495 : 87 N.E. 819 such demand is accompanied by other conduct consistent only with an intention to rescind, the vendee who has so acted cannot later seek specific performance, for, as has been said, a non-existent contract cannot be specifically enforced. We hold accordingly that the conduct of the parties does not show that the contract was rescinded, and it has not been urged that, apart from this, the conduct of the plaintiff has been such that, though it does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Palace Car Company (1890) 139 U.S. 24. As Baggally, L.J. said in Chapleo v. Br(1881) 6 Q.B.D. 696unswick Building Society : 50 L.J.Q.B. 372 : 44 L.T. 449 : 29 W.R. 529 if the Company has received the benefit of the payment, if, for instance, that amount has found its way to the credit of its banking account, the plaintiff might have been enabled to establish a claim against the Company to the extent of the benefit derived by it from the transaction: Lawford v. Billericay Rural Council 1 K.B. 772 : 72 L.J.K.B. 554 : 88 L.T. 317 : 51 W.R. 630 : 67 J.P. 245 :1 L.G.R. 535 : 19 T.L.R. 322 and Douglass v. Rhyl Urban District Council (1913) 2 Ch. 407 : 82 L.J. Ch. 537 : 109 L.T. 30 : 77 J.P. 373 : 11 L.G. R. 1162 : 57 S.J. 627 : 29 T.L.R. 605. In the case before us, the plaintiff is clearly entitled to a return of ₹ 957-11-1 together with interest thereon from the date of deposit to the date of realisation. 13. One other question requires consideration, namely, whether the plaintiff is entitled to relief against the District Board by way of cross-objection to the decree in an appeal preferred by the other defendants. It need not be disputed that, as an ordinary rule, a responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. There is no answer to the cross-objections on the merits, while the appeal itself is, as we have seen, groundless. The cross-objections must, consequently, succeed, while the appeal cannot be sustained. 14. We may add that even if we had declined to entertain the cross-objections, and had merely dismissed the appeal, the practical result would have been identical with what will be the consequence of our decree. The plaintiff Ramkumar Saha has been in undisturbed possession of the land all along, notwithstanding the acquisition. His possession became adverse to the Board on the 21st February 1898; consequently, he acquired an indefeasible title on the 21st February 1910. If the conditional decree, made by the District Judge, be maintained, the plaintiff need never take back the deposit, but he will be entitled to receive from the Collector the compensation awarded under the Lard Acquisition Act. The plaintiff thus achieves the end he has in view, namely retention of possession of the land; that possession can no longer be disturbed by the District Board. The Counsel for the District Board fully appreciated the difficulties of the situation; he complained that the decree of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing. The plaintiff Ram-kumar Saha is awarded a decree for specific performance of the contract of sale of the land mentioned in the schedule to the plaint, as against the District Board of Chittagong; the Board is directed to execute a conveyance in his favour in accordance with law. On failure of the Board to execute the conveyance, the plaintiff will be at liberty to proceed in accordance with Order XXI, Rules 32 and 34, of the Code. The possession of the plaintiff will be confirmed, and should it transpire that he has been dispossessed, he will be restorod to possession in execution of the decree of this Court, as explained in Madam Mohan Singh v. Gaja Prosai Singh 11 Ind. Cas. 228 : 14 C.L.J. 159; Fateh Cand v. Narsingh Das 16 Ind. Cas. 988 : 22 C.L.J. 383. The plaintiff will, in addition, have a decree, against the District Board, for ₹ 957-11-1 together with interest thereon at 6 per cent per annum from 4th December 1900 to the date of realisation. The plaintiff will have his costs in the Courts of the Subordinate Judge and the District Judge from the District Board, and his costs in this Court from the other defendants. A self-contained decree, which will set out the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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