Judgement Appeal from a decree of the High Court (Feb. 18, 1902) affirming a decree of Fulton J. (Sept. 26, 1901). The plaint sought relief and a declaration of rights with reference to a purchase of the tramway companys property and business, which the corporation of Bombay claimed to have made under the Bombay Tramways Act, 1874 (Act I. of 1874 Bombay Council), s. 30 being set out in their Lordships judgment. The main subject of dispute was as to the validity of the notice given by the plaintiffs under s. 30. The plaint disputed the validity of three notices given on the grounds—(1.) that the corporation did not authorize the affixing of their seal; (2.) that no one of the notices was " the notice contemplated " by the Act or the agreement of 1873 scheduled to the Act, clause 15 of which was similar in its terms to s. 30 of the Act; (3.) that the Act did not contemplate a number of notices. But the principal contention was that the notice was ultra vires. The plaint disputed the right of the corporation to purchase under the circumstances set out in paragraph 24 of the plaint. These circumstances were that the corporation had, on March 11, 1901, entered into an agreement with Mr. W. G. Bingham, " by which," the plaint (paragraph 24) states, " the first defendant agreed to make the Law Rep. 31 Ind. App. 169 ( 1903- 1904) Bombay Tramway C o. v. Municipal Corporation Bombay 69 proposed purchase of the plaintiffs’ property and business on behalf of and for and on account of the said Mr. Bingham " ; that the said notices had all " been sent to the plaintiffs by the first defendant by reason of the said agreement with Mr. Bingham, and could not have been sent if the said agreement had not been entered into." And the plaintiffs submitted that the corporation had not " acquired any right to purchase the property," &c, of the plaintiff company; and that the Act and the agreement of 1873 "only contemplated a bond, fide purchase by the municipal corporation .... Bingham, and could not have been sent if the said agreement had not been entered into." And the plaintiffs submitted that the corporation had not " acquired any right to purchase the property," &c, of the plaintiff company; and that the Act and the agreement of 1873 "only contemplated a bond, fide purchase by the municipal corporation .... on its own account, and do not authorize a purchase or intention to purchase as the agent of or on account of a third person "; and that under the Act and the agreement of 1873 the corporation had no power to acquire the said pro perty and business " save in the case of the first defendants bon& fide intending to acquire the said property and business for the municipal corporation of the city of Bombay with the bon& fide intention of carrying on and working the said business themselves," and they charge that the corporation " has no such bon& fide intention." Fulton J. with reference to the arrangement with Mr. Bingham held that it did not constitute the corporation " the agents of Mr. Bingham in respect of the purchase of the tramways " ; that "in giving notice of purchase the corporation are not acting for Mr. Bingham, for it is on the corporation and not on Mr. Bingham that the Legislature has conferred the statutory power "; and that the corporation in dealing with the tramway company were " exercising their own powers " and not powers derived from Mr. Bingham. The High Court held that it was well established that any company authorized by the Legislature to take compulsorily the land of another for a definite object will if attempting to take it for another be restrained; and that statutory powers such as are essential to the working of a tramway undertaking are not capable of assignment, but that at the same time they could be exercised, not only by the original grantees, but also by every one within the particular designation contained in the Act—that is, in this case, by every one answering the designation of grantees, i.e., the executors, administrators, and assigns. “By s. 31 of the Act it is provided that the grantees may sell their rights and powers to others. “By s. 31 of the Act it is provided that the grantees may sell their rights and powers to others. For the tramway company it has been contended that the provisions of s. 31 do not apply to a sale under s. 30, and that the corporation on a sale under s. 30 cannot claim to be assigns and so grantees within the definition of the Act. If this argument be well founded, as to which it is unnecessary that I should at this stage express my opinion, then obviously the corporation has no power to exercise the powers of " carrying on and working the business." Be this, however, as it may, there is another obstacle in the way of its working the tramways such a power is outside the corporations constitution, and it does not appear to me that it was the intention of the Legislature by the Tramways Act of 1872 to enlarge its constitution in this direction. The purpose of the Act is to sanction the invasion of the rights of the public, and not to extend the corporations powers by authorizing it to work the tramways. " But if the corporation has no power to work the tramways, what, is it to do when it has purchased the undertaking ? It is important in this connection to bear in mind that it is not a body called into existence for the purpose of acquiring the tramways, and that it is not vested with the right to purchase for the purpose of private speculation and adventure, but to safeguard and advance the interests of the Bombay public. " It cannot then have been intended that the corporation was to expend the large sums payable under s. 30 for no purpose, or that the whole tramway system of the city should on a purchase under that section come to an end; it must have been contemplated that the undertaking should be continued by those to whom it was transferred or passed on by the corporation, in case it did not acquire the requisite power of working for itself. This, in my opinion, is the true view of the Law Rep. 31 Ind. App. 169 ( 1903- 1904) Bombay Tramway C o. v. Municipal Corporation Bombay 70 position, and it follows that the corporation were within their rights when they made the arrangement they did with Mr. Bingham. This, in my opinion, is the true view of the Law Rep. 31 Ind. App. 169 ( 1903- 1904) Bombay Tramway C o. v. Municipal Corporation Bombay 70 position, and it follows that the corporation were within their rights when they made the arrangement they did with Mr. Bingham. They did that which was prudent and proper under the circumstances, and, in my opinion, the notice was not vitiated by the ulterior purpose in view. To me it seems that there is no force in the suggestion that the agreement between the corporation and Mr. Bingham involves a breach of the provisions of the Penal Code, and so impairs the validity of the notice. Even assuming for the sake of argument that Mr. Bingham or his assigns will not be entitled to exercise the powers contained in the Act, or to work the tramways without further legislative authority, still this would not vitiate what the corporation has done; that is a matter between the corporation and Mr. Bingham, and may possibly release the parties to that contract from the liabilities they assumed ; it would not make the notice bad as between the corporation and the tramway company." Jardine, K.C., and Ross, for the appellants, contended that the notice given by the respondents was not such a notice as was intended by s. 30 of Act I. of 1874 (Bombay). Compare s. 43 of the English Tramways Act, 1870 (c. 78). Power was given by s. 43 to purchasers to deal with the undertaking in the same way as their vendors. No such power was given by s. 30 in question. Consequently the corporation had no power to purchase with a view to transfer the undertaking to others. The evidence shews that that was the sole object in view; they took over the undertaking with no intention of working it themselves, but of transferring it to Bingham. They thereby exceeded their powers. Cohen, K.C., Haldane, K.C., and A. Phillips, for the respondents, were not heard. Lynch, for trustees of the debenture-holders. June 3. The judgment of their Lordships was delivered by LORD LINDLEY. The questions raised by this appeal arise out of a purchase by the corporation of the city of Bombay of the undertaking of the Bombay Tramway Company. The purchase was made under the provisions of s. 30 of the Bombay Tramways Act, 1874 (Act I. of 1874). June 3. The judgment of their Lordships was delivered by LORD LINDLEY. The questions raised by this appeal arise out of a purchase by the corporation of the city of Bombay of the undertaking of the Bombay Tramway Company. The purchase was made under the provisions of s. 30 of the Bombay Tramways Act, 1874 (Act I. of 1874). This section is as follows— " The said municipal corporation of the city of Bombay shall have the right of purchasing the said tramways with the plant, stores, rolling-stock, and everything connected therewith after the expiration of twenty-one years from the 12th day of March, 1873, upon declaring its intention so to do within six months after the expiration of the said twenty-one years, and shall have a renewed right of purchase at the end of every seven years after the expiration of the said twenty-one years upon similar notice being given; the amount to be paid in the event of such purchase shall be the actual bon& fide value (exclusive of any compensation for goodwill, premium, or compulsory sale or other consideration whatsoever) of the tramways and of the works and materials connected therewith, and of the lands and buildings and all other the property of the grantees, such value in case the parties do not agree to be decided by arbitration as provided by the said agreement of the 12th day of March, 1873; and as compensation for the goodwill, premium, or compulsory sale and other consideration, the grantees shall be paid an amount equal to twenty-one years purchase calculated on the average profits of the previous three years next preceding the purchase, 4 per cent, per annum on the bon& fide value mentioned above being first deducted from such profits." On March 11, 1901, the corporation served notice of their intention to purchase the tramway companys undertaking; but there being some doubt whether this notice was regular in point of time, two other notices, dated respectively March 12 and 13, 1901, were afterwards served, and it is now admitted that no objection on the ground of date has to be considered. Law Rep. 31 Ind. App. Law Rep. 31 Ind. App. 169 ( 1903- 1904) Bombay Tramway C o. v. Municipal Corporation Bombay 71 The tramway company, however, contend that the notice is altogether invalid, because the corporation are acting beyond their powers, namely, not for themselves, but for and on behalf and on account of a person named Bingham. When the facts are investigated, it appears that although the corporation have made arrangements with Bingham by which he is to find the money for the purchase and to work the tramways when acquired by the corporation, yet the corporation are acting as principals and not as Binghams agents. There is nothing in the Tramways Act which expressly or impliedly prohibits such a transaction—nothing to shew that if the corporation exercise the power conferred on them by s. 30 and acquire the tramways, they are bound to keep them in their own hands and to work them themselves. Whether they can carry out their agreement with Bingham without obtaining further powers is a matter which does not concern the tramway company. This point was elaborately dealt with both by the judge of first instance and by the learned Chief Justice of Bombay, and their Lordships think it unnecessary to say more than that they are satisfied that on this point the judgment appealed from was perfectly correct. Then another question was raised by the tramway company, which was that the date to be fixed as the date of taking the purchase ought to be later than that mentioned in the judgment. If the proper date had to be determined by their Lordships, unembarrassed by what took place in India, their Lordships would have thought that the proper date to be fixed would have been when the relation of vendor and purchaser was definitely created by the service of a proper notice to purchase, i.e., in this case March 14, 1901. This was the view taken by the judge of first instance, Fulton J. But for some reason, which their Lordships do not appreciate, both parties appealed against his decision, and contended before the Appellate Court for a different date. Having regard to the course taken by both parties in the Court below, their Lordships do not consider that either party, without the consent of the other, can fairly insist now that the above date ought to be adopted. Having regard to the course taken by both parties in the Court below, their Lordships do not consider that either party, without the consent of the other, can fairly insist now that the above date ought to be adopted. Under these circumstances their Lordships see no reason for disturbing the date fixed by the Appellate Court, i.e., the date of the award fixing the value of the corporeal property of the tramway company. As pointed out both by Fulton J. and the Chief Justice, to fix the date of the execution of the conveyance would lead to great practical difficulties. The profits would vary from day to day, and the average profits for three years could never be ascertained. Another point contended for by the tramway company was that what is called track rent payable to the corporation ought to cease on March 14, 1901. This contention is, however, disposed of by the fact that in March, 1901, it was expressly agreed between the tramway company and the corporation that the tramway company would continue to work the tramways pending the ascertainment and payment of the purchase-money on the understanding that they received " the income and profits of the tramway business during such period." It is plain that so long as the tramway take the profits, they must pay the ordinary expenses of workings and the rent in question. Their Lordships will, therefore, humbly advise His Majesty to dismiss this appeal, and the appellant company must pay the costs of the corporation.