Judgement Appeal (No. 48 of 1947) from a judgment and decree of the High Court (April 3, 1945), which had affirmed a judgment and the decree of the principal Subordinate Judge of Madura (October 25, 1943). The following facts are taken from the judgment of the Judicial Committee. In this appeal two main questions arose for consideration. The first, which turned on the true meaning and effect of certain sections of the Indian Railways Act (IX. of 1890), was whether in the circumstances of the case and on a true construction of that Act, and particularly of the proviso contained in s. 11, sub-s. 3 (b), thereof, the Provincial Government of Madras had power to issue a requisition to the South Indian Railway Company, which will be referred to as " the Railway/ to enlarge at its own cost one of its culverts from a water way of 6 feet to one of 20 feet as a further or additional accommodation work for the use (as the appellant alleged) of the respondent, the Municipal Council of Madura. The second question, which only arose if the Provincial Government had no such power, was whether the Railway was under and by virtue of the provisions of s. 70 of the Indian Contract Act (IX. of 1872) entitled to recover from the respondent the cost of such enlargement. The original plaintiff in the suit was the Railway, but by an order made on August 31, 1944, while the appeal was pending in the High Court, the Governor-General in Council was substituted as the appellant. The respondent was a statutory body governed by the provisions of the Madras District Municipalities Act (Madras Act V. of 1920), and under that Act (by s. 61) all public streets, sewers, drains, drainage works, tunnels and culverts within the municipal limits and (by s. 125) all public water courses as therein defined were vested in the respondent. By s. 137 it was required to provide and maintain a sufficient system of public drains, and by s. 162 to maintain and repair public streets and bridges. In or about 1902 the Railway constructed a branch railway line between Madura and Manamadura. By s. 137 it was required to provide and maintain a sufficient system of public drains, and by s. 162 to maintain and repair public streets and bridges. In or about 1902 the Railway constructed a branch railway line between Madura and Manamadura. That line met at right angles at a point called in the proceedings Mile J 309/16 a water channel known as the Anuppanadi surplus channel, which flowed through the south part of the Madura municipality from the Anuppanadi tank carrying the surplus water of the tank and the storm and sewage water of several municipal drains which ran into the channel. At the time of making the branch line the Railway provided a culvert 6 feet wide over that channel as an accommodation work under s. 11, sub-s. 1 (b), of the Railway Act. The surrounding land was then agricultural land and was only at a later date absorbed into the growing town of Madura. It could not, as their Lordships of the Board thought, be doubted that the culvert was at the time of its construction approved by the local Collector on behalf of the Madras Government, and that it was then considered adequate appeared to be conclusively established by the letter written by the Collector of Madura to the Agent-of the Railway on December 14, 1937, in which he said " The "culvert which was found sufficient in 1902 when the line “ ran through agriculturist land is not sufficient now that the "town has extended to the railway." But in November, 1936, when the River Vagai, with which the channel was connected, was in heavy flood, the channel and the railway culvert were unable to discharge the surplus water as it came down, the surrounding lands were flooded and some damage was caused to roads and huts. Accordingly, the respondent made representations to the Collector of Madura referring (inter alia) to the insufficiency of the channel and culvert in question in this case and stating that, unless sufficient protective works were carried out by the Public Works Department, flood damage within the town could not be prevented. Accordingly, the respondent made representations to the Collector of Madura referring (inter alia) to the insufficiency of the channel and culvert in question in this case and stating that, unless sufficient protective works were carried out by the Public Works Department, flood damage within the town could not be prevented. On that there followed a correspondence between the respondent, the Railway, the Collector and the Provincial Government, which culminated in an order of November 26, 1938, by which the Provincial Government of Madras purporting to act " in " exercise of the special powers vested in them under cl. (b) "of sub-s. 3 of s. 11 of the Indian Railways Act" issued to the Railway the requisition already referred to requiring the Railway to widen the ventway in the culvert to a depth of 5 feet and to a width of 20 feet at the cost of the Railway within six months from the date of the requisition. It must, however, be stated, as relevant to the second question that arose oh this appeal, that at all times both before and after the requisition the Railway denied its liability, protested that the requisition was illegal and ultra vires, and asserted that it was only prepared to carry out the work without prejudice to its claim to foe repaid the cost either by the Government or by the respondent or both. To the respondent also the Railway wrote that the expense of the work was being incurred under protest, that it was not intended to be, and was not being, done gratuitously or voluntarily, and that proceedings would be taken against the respondent or the Government or both for recovery of the cost. It was nevertheless, made clear to the Railway that both the respondent and the Government repudiated all liability for such expense. It was in those circumstances that the Railway executed the necessary work of widening the culvert and, having done so, instituted its suit in the Court of the Subordinate Judge at Madura against the respondent, claiming the sum of Rs. 16,222-5-0 as the cost of that work. It did not appear that any claim was made against the Government. The suit was dismissed by the learned Subordinate Judge, who held that the requisition was not ultra vires and that, even if it was, the Railway could not rely on s. 70 of the Indian Contract Act. 16,222-5-0 as the cost of that work. It did not appear that any claim was made against the Government. The suit was dismissed by the learned Subordinate Judge, who held that the requisition was not ultra vires and that, even if it was, the Railway could not rely on s. 70 of the Indian Contract Act. That decision was on both points affirmed by the High Court consisting of Sir Lionel Leach C.J. and Lakshmana Rao J. By the Indian Railways Act, 1890 " 11.—(1.) A railway administration shall make and maintain " the following works for the accommodation of the owners " and occupiers of lands adjoining the railway, namely — " (a) sch and so many convenient crossings, bridges, " arches, culverts and passages over, under or by the sides of, " or leading to or from, the railway as may, in the opinion " of the Provincial Government, be necessary for the purpose " of making good any interruptions caused by the railway " to the use of the lands through which the railway is " made, and " (b) 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. " (2.) Subject to the other provisions of this Act, the works "specified in clauses (a) and (b) of sub-section (1.) shall be "made during or immediately after the laying out or formation 11 of the railway over the lands traversed thereby and in such " manner as to cause as little damage or inconvenience as "possible to persons interested in the lands or affected by the " works. " (3.) The foregoing provisions of this section are subject to " the following provisos, namely — " (a) a railway administration shall not be required to make " any accommodation works in such a manner as would " prevent or obstruct the working or using of the railway, or "to make any accommodation works with respect to which " the owners and occupiers of the lands have agreed to receive " and have been paid compensation in consideration of their " not requiring the works to be made ; " (b) 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 M 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 ; " (c) where a railway administration has provided suitable 41 accommodation for the crossing of a road or stream, and the " road or stream is afterwards diverted by the act or neglect " of the person having the control thereof, the administration " shall not be compelled to provide other accommodation " for the crossing of the road or stream. " (4) The Provincial Government may appoint a time for the " commencement of any work to be executed under sub jection (1.), and if for fourteen days next after that time the " railway administration fails to commence the work or, having " commenced it, fails to proceed diligently to execute it in a " sufficient manner, the Provincial Government may execute it " and recover from the railway administration the cost incurred " by it in the execution thereof. " 12. " 12. 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 authorized by the " general controlling authority." 1948. May 26, 27. Pringle K.C. and Bagram for the appellant. The appeal raises two points. Firstly, whether the railway companys liability to make the accommodation is a once for all liability in the sense that it is limited to the physical conditions existing at the time of the railway construction, or whether it is an elastic liability which is liable to be enlarged or revised on the requisition of the Provincial Government in accordance with changes and developments in adjoining lands which have taken place after the construction of the railway. Secondly, whether in the circumstances of this case the railway company can under s. 70 of the Indian Contract Act recover the cost of construction rendered necessary by a subsequent development of adjoining land made on the requisition of the Provincial Government at the instance and for the benefit of the respondent municipality. The matter is very important to the railway company, since if the appellant is wrong a railway company can be made an unwilling contributor to all sorts of development schemes. This should have been a s. 12 case. The courts in India have treated the English authorities as more or less irrelevant because of the difference between the Indian Railways Act and the Railway Clauses Consolidation Act, 1845. This should have been a s. 12 case. The courts in India have treated the English authorities as more or less irrelevant because of the difference between the Indian Railways Act and the Railway Clauses Consolidation Act, 1845. Reliance is placed on those authorities, however, because it is submitted that the material provisions of the two Acts, except for one or two particulars, are precisely the same s. 11, sub-s. 1 (b) of the Indian Act corresponds to the third paragraph of s. 68 of the English Act ; s. 11, sub-s. 3 (b) corresponds to s. 73, and s. 12 to ss. 71 and 72 of the English Act. [Reference was then made to Reg. v. Brown (( 1867) L. R. 2 Q. B. 630.)—on the point that liability to construct accommodation works relates to the present use of the land and not to the potential use Colley v. London and North Western Ry. Co. (( 1880) 5 Ex. D. 277, 279.) ; Rhondda and Swansea Ry. Co. v. Talbot ([ 1897] 2 Ch. 131, 137, 139.), is useful as considering all the relevant sections together ; and Great Western Ry. Co. v. Talbot ([ 1902] 2 Ch. 759.), which does not carry the matter further.] The argument proceeds on the basis (a) that the railway at the time of the construction of the culvert had satisfied its obligation under s. 11, sub-s. 1 (b), and (b) that the enlargement of the waterway was rendered necessary by subsequent development of the locality. The question therefore is whether the power to require the railway company to execute the additional accommodation at its own expense can be, spelt out of s. 11, sub-s. 3 (b). In this connexion there are three elements which should be distinguished (a) the standard to which the railway is required to construct ; (b) the time within which it is required to construct ; and (c) the person who has to pay for it. In respect of all three elements ss. 11 and 12 differ. It would be wrong to read some wide overriding power in the Government into s. 11, sub-s. 3 (b), which takes the form of a proviso. Nothing should be read into that proviso enlarging the obligation in the other sub-sections of s. 11. In respect of all three elements ss. 11 and 12 differ. It would be wrong to read some wide overriding power in the Government into s. 11, sub-s. 3 (b), which takes the form of a proviso. Nothing should be read into that proviso enlarging the obligation in the other sub-sections of s. 11. If the construction contended for by the respondent is correct—that the Provincial Government can do anything on a requisition—there would be no room for s. 12, and, further, the railway could be made to pay for all sorts of schemes. In short, the statutory obligation imposed oh the railway administration by s. 11, sub-s. 1 (b), is to be measured by the physical conditions of the affected Ideality as they existed at the time of the construction of the railway, and s. 11, sub-s. 3 (b), neither purports nor operates to widen or vary such obligation, but has been enacted for the benefit of the railways. Both courts in India erred in holding that the effect of s. 11, sub-s. 3 (b), is to authorize the Provincial Government to require a railway administration to defray the cost of executing further or additional accommodation works rendered necessary by changes in the character of the locality arising subsequently to the construction of the railway. With regard to the second point—whether the railway can recover under s. 70 of the Indian Contract Act—in every case the whole circumstances of each case have to be considered Pollock and Mulla on Indian Contract and Specific Relief Acts, 6th ed., p. 393 ; Raghavan v. Alamelu Animal (( 1907) I.L.R. 31 Mad. 35.) ; Jarao Kumari v. Basanta Kumar Roy (( 1904) I. L R. 32 C. 374, 376-7.). On this point both the courts below held that s. 70 did not apply, but on different grounds. There are four elements ; the act has to be done " lawfully" ; it must not be intended to be gratuitous ; it must be an act done "for" another, and such other person must enjoy the benefit. There is no question here about the first two, so the question is whether it was done " for" the municipality and for its benefit. It was, and it makes no difference that it was done under compulsion. There is no question here about the first two, so the question is whether it was done " for" the municipality and for its benefit. It was, and it makes no difference that it was done under compulsion. The High Court erred in holding that the work was not done " for " the respondent, and that the only benefit the respondent enjoys from the work is the indirect benefit of recovering taxes from the owners or occupiers of property in the flooded neighbourhood. The work came within the terms of s. 70. Sir Herbert Cunliffe K.C., Subba Row and Gavin Simonds for the respondent. This case falls under s. 11 and not under s. 12 of the Railways Act. Under s. 12 the railway company cannot be required to do any work at its own expense, and no action was taken by any one under that section, which can have no application here. Under s. 11, sub-s. 1 (b), of the Act a railway administration is under an obligation to make and maintain all necessary works, such as culverts, which in the opinion of the Provincial Government may be necessary at all time to convey water as freely as before the making of the railway. What has already been said with so much force by the judgments of the two courts below is adopted. This case really turns on the construction of a single sentence in s. 11, sub-s. 3 (b), and it is useless to refer to cases based on a statute passed in a different country, in different circumstances and in different terms. There are no words in the English cases corresponding to " except on the requisition of the Provincial " Government." There is nothing in s. 11, sub-s. 3 (b), to limit the time within which the requisition may be made, and the Provincial Government has power to make the requisition even after the expiry of ten years from the date of the openin of the line to public traffic. No meaning can be given to the words " further or additional accommodation works" unless they mean that something more is to be done. The legislature clearly contemplated some alteration in the physical conditions which would necessitate the making of further or additional accommodation. No meaning can be given to the words " further or additional accommodation works" unless they mean that something more is to be done. The legislature clearly contemplated some alteration in the physical conditions which would necessitate the making of further or additional accommodation. The order of the Government of Madras, dated November, 26, 1938, is a valid order and is within its power to make under s. 11 of the Railways Act. With regard to s. 70 of the Contract Act, this work was not in the circumstances done " for" the respondent municipality, and it did not enjoy the benefit of it ; s. 70 is therefore inapplicable. The respondent council is not responsible either directly or indirectly for the issue of the requisition to the appellant by the Government, and it was not made for its benefit. Subba Row followed. Pringle K.C. replied. June 15. The judgment of their Lordships was delivered by LORD SIMONDS, who stated the facts set out above and continued Their Lordships are of opinion that the decision of the High Court on the second point—on s, 70 of the Indian Contract Act—is clearly right. The appellant can only succeed on this point if he establishes that the railway lawfully did the work for the respondent, not intending to do so gratuitously, and that the respondent enjoys the benefit thereof. It may be conceded that the work was lawfully done and that the railway did not intend to do it gratuitously, but their Lordships agree with the learned judges of the High Court in thinking that the work was not done for the respondent, nor does the respondent enjoy the benefit of it within the meaning of the section. The railway executed the work for no other reason than that it was ordered to do so by the Government and presumably thought it politic to obey the order rather than challenge its validity. The respondent throughout denied its liability to meet any expense. Tt is true that the first suggestion of further protective works, which ultimately took the form (inter alia) of an enlargement of the culvert, came from the respondent, but the railway was left in no doubt that, if it executed this work at the requisition of the Government, the respondent would not pay for it. Tt is true that the first suggestion of further protective works, which ultimately took the form (inter alia) of an enlargement of the culvert, came from the respondent, but the railway was left in no doubt that, if it executed this work at the requisition of the Government, the respondent would not pay for it. It would, in their Lordships opinion, put an extravagant construction on s. 70 of the Indian Contract Act to hold that in such circumstances the work was done by the railway for the respondent. Nor does the respondent enjoy the benefit of the work except in an indirect sense substantially, the persons who derive a benefit are the owners and occupiers of the build ings and land in the locality. On this point their Lordships cannot usefully add anything to the judgment of the High Court with which they are fully in accord. A decision on this point is sufficient to dispose of the appeal. But the question of general importance which arises on the first point was fully argued and their Lordships think it proper, since here they have come to a different conclusion from that reached by the High Court, to state their opinion on it. It is necessary to refer to two sections only of the Indian Railways Act, which can conveniently be set out here. [His Lordship then set out s. 11, sub-ss. 1, 2, 3 and 4, and s. 12 of the Indian Railways Act, and continued ] The provisions which, for the purpose of this case, appear to demand particular examination are in s. 11, sub-s. 1 (&), s. 11, sub-s. 3 (b), and s. 12. But it is important to observe on the general structure of s. 11 that sub-s. 3 of s. 11 contains nothing more than provisos on the two preceding sub-sections, and in this connexion the well established rule of construction must be borne in mind which was thus stated by Lord Watson in West Derby Union v. Metropolitan Life Assurance Society ([ 1897] A. C. 647, 652.). "I am perfectly clear " that if the language of the enacting part of the statute does " not contain the provisions which are said to occur in it, " you cannot derive these provisions by implication from a "proviso." What, then, do sub-ss. "I am perfectly clear " that if the language of the enacting part of the statute does " not contain the provisions which are said to occur in it, " you cannot derive these provisions by implication from a "proviso." What, then, do sub-ss. 1 and 2 of s. 11, on which sub-s. 3 contains provisos, enact ? They appear to be unambiguous. The obligation imposed on the railway, so far as relevant for the present purpose, is to make and maintain a culvert which 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. It is clear that the obligation under sub-s. 1 is to be measured by the conditions existing at the time of the making of the railway. The words " as freely, etc." set the standard and define the obligation. The adjoining owner is not to be injuriously affected by the construction of the railway the status quo is to be preserved. The nature of the works having been prescribed by sub-s. 1, the time within which they are to be carried out is laid down by sub-s. 2. Then come the provisos in sub-s. 3. The proviso in (a) is a qualification on the statutory obligation for the benefit of the railway. So, also, is the proviso in (c). It is the proviso in (b) that is immediately relevant, and it must first be observed that it is in form negative. It does not purport to vest any new rights in any person or to impose any new duty on the railway. Whence, then, arises the obligation of the railway, for which the respondent contends, to make accommodation works, the standard of which is determined not by the conditions existing at the making of the railway but by those which come into existence at a later date ? It must be conceded that it can only arise, if at all, from an affirmative which is to be implied from the negative. It must be conceded that it can only arise, if at all, from an affirmative which is to be implied from the negative. And this affirmative must amount to no less than a new obligation on the railway, at the instance of the adjoining owner within ten years or of the Provincial Government for all time, at its own cost to make accommodation works rendered necessary or convenient by a change of conditions which has taken place after the railway has been constructed. Their Lordships cannot accept such an implication as a fair interpretation of the proviso, unless it is otherwise meaningless. But it is by no means impossible to give meaning and effect to the proviso without doing violence to its language and to the canon of construction to which reference has been made. For the " further or " additional accommodation works" mentioned in the sub section may be required not because those originally constructed have become insufficient owing to a change of conditions, but because the adjoining landowner has miscalculated what the conditions originally existing would demand for the commodious use of his land, and is given an opportunity within a limited time of making a fresh demand. Nor would it be unreasonable in the circumstances which prevail in large parts of India that an unlimited time should be given to the Government to require that the same standard should be established and maintained. Therefore, as it appears to their Lordships, s. 11, sub-s. 3 (b), ought not, even if it stood alone, to be given the wide meaning ascribed to it by the High Court. But it further appears to them that some assistance is given to this view by the language of s. 12. That section clearly is intended to cover works which the railway is not bound to construct under s. 11. For they are works which are to be erected at the expense of the adjoining owner or the Government. It is difficult to see what scope the section can have, if under s. 11, sub-s. 3 (b), the Government can for all time requisition such further or additional accommodation works as the commodious use of adjoining land may from time to time with altering conditions require. It is difficult to see what scope the section can have, if under s. 11, sub-s. 3 (b), the Government can for all time requisition such further or additional accommodation works as the commodious use of adjoining land may from time to time with altering conditions require. There is, however, a clear reconciliation between the sections if the former relates only to such works as the physical conditions and use of the land at the time of construction of the railway required. Their Lordships therefore come to the conclusion that the construction of the Railways Act for which the appellant contends is correct. In coming to this conclusion they have had strict regard to the language of that Act. In the course of the argument before the Board and in the courts of India the appellant has relied largely on decisions in the English courts on the similar but by no means identical provisions of the Railway Clauses Consolidation Act, 1845, and particularly on Rhondda and Swansea Ry. Co. v. Talbot ([ 1897] 2 Ch. 131.) and Great Western Ry. Co. v. Talbot ([ 1902] 2 Ch. 759.). From these decisions valuable guidance is to be obtained, but their Lordships agree with the learned Chief Justice in thinking that the difference in the language of the relevant statutes and in the conditions in which they are to be applied makes it dangerous to rely on them as authorities, and they prefer to base their opinion on the interpretation of the Indian Act alone. On this part of the case one further point must be mentioned. The High Court, affirming in this matter also the decision of the Subordinate Judge, held that the widening of the culvert to 20 feet was a work which was as necessary in 1902 as it was in 1938, and that therefore on any construction of the Act the requisition of the Government in the latter year was valid. It appears to their Lordships that this finding ignores the fact and, indeed, the admission, to which reference has been made, that it was only the change of conditions which made the enlargement of the culvert necessary. It may well be that, if in 1902 the town of Madura had reached its present size, the result would be different. It appears to their Lordships that this finding ignores the fact and, indeed, the admission, to which reference has been made, that it was only the change of conditions which made the enlargement of the culvert necessary. It may well be that, if in 1902 the town of Madura had reached its present size, the result would be different. But the evidence is conclusive that the culvert made in 1902 enabled the water to be carried " as freely from or to the lands " lying near or affected by the railway as before the making "of the railway" and that, had the conditions remained unchanged, no enlargement would have been wanted. For the reasons which have already been stated, the respondent succeeding on the second point, though failing on the first, is entitled to have the appeal dismissed, with costs, -and their Lordships, will humbly advise His Majesty accordingly.