Baboo Pran Nath Pundit, for Appellant. Moonshee Mahomed Yusuf, for Respondent. The judgment of the Court (1) was delivered by BROUGHTON, J. : The plaintiff in this case sues to recover possession of a piece of land which lies to the west side of his house. It extends from one end of his west wall to the other, and is four cubits wide and forty-nine cubits long. The defendants are the owners of the adjoining land west of the plaintiff's property and west of the disputed land which lies between the two walls of the plaintiff and defendant's, and which has been called a lane. The case was originally tried in the year 1872, and was appealed first to the lower Appellate Court and then to this Court. The learned Judge who tried the second or special appeal, the late Mr. Justice LAWFORD, remanded the case for a fresh trial, on the ground that the Judges of the lower Courts had not tried the question of title but had given half the land to the plaintiff and half the land to the defendants, the division being made by a line down the middle, as the most convenient way of settling the dispute between the parties. The Court of First Instance was, therefore, directed to try the title which it has now done, finding, after examining several witnesses, for the plaintiff; and ordering that a certain building, which the defendants had erected upon the land in dispute, should be demolished; and the lower Appellate Court has upheld this finding. It is objected now on special appeal, although the finding of the lower Courts on the matter of fact cannot be disputed, that they have made an error in law in that they have not awarded compensation to the defendants for the building which they erected upon the plaintiff's land, and which has been ordered to be pulled down and it has further been argued that the Courts had no power to order the building to be demolished at all, and several decisions of this Court had been cited in support of this (1) BROUGHTON, J. 1878 b FURZUND ALI V. AKA ALI MAHOMED Judgment. BROUGH TON, J. 1878 KHAN v. AKA ALI MAHOMED. Judgment. BROUGHTON, J. contention by the pleader for the appellants. They were the FURZUND ALI cases-Bani Madhub Dass vs. Ramjoy Rokh, 1 B. L. R., A. C., 213; Rani Rama vs. Jan Mahomed, 3 B. L. R., A. C., 18; Bromo Moye Debea vs. Koomoodinee Kant Banerjee, 17 W. R., 466; Lala Gopee Chand vs. Sheik Liakut Hossein, 25 W. R., 211; and Bani Madhub Banerjee vs. Jai Krishna Mookerjee, 7 B. L. R., 152; also reported in 12 W. R., 495. All these cases proceed, however, upon the principle that where the owner of land stands by and allows another person who believes that he himself has a bona fide title to erect buildings and make improvements on the land the owner cannot eject him and appropriate his buildings or his improvements. This principle has been recognized by the Legislature of this country, and it is enacted in Act XI of 1855, section 2, that "if any person shall erect any building or make an improvement upon any lands held by him bona fide, in the belief that he had an estate in fee-simple or other absolute estate, and such person, his heirs or assigns, or his or their under-tenants be evicted from such lands by any person having a better title, the person who erected the building, or made the improvement, his heirs or assigns, shall be entitled either to have the value of the building or improvement so erected or made during such holding, and in such belief estimated and paid or secured to him or them, &c. This Act relates only to cases where the English law applies; but it embodies a principle which has been adopted in this country in the cases which have been cited, in which the English law is not applicable. The foundation of the right to compensation is the erection of the building or the making of the improvement by the trespasser in the bona fide belief that he had a title. If he had not such a bona fide belief, he is a mere trespasser; he has spent his money at his own risk, and can claim no compensation. Now, in this case, the Courts below have found as a fact, and I have no jurisdiction in this special appeal to interfere with their finding, that the defendants erected the building, which they have ordered to be demolished, in the plaintiff's absence; and that they have placed the beams to support it actually in the wall of the plaintiff's house, which even now they do not lay claim to This shows an entire absence of any bona fide belief on the part of the defendants that they were building on land to which they had a title, and consequently they can claim no compensation, but must pull down the building as directed by the lower Court. The appeal must, therefore, be dismissed; the decree of the lower Courts will stand; and the defendants, appellants, must pay also the costs of this appeal, and interest at the rate of six per cent. per annum. [PRIVY COUNCIL.] 1878 THE QUEEN. AND APPELLANT; June 5th. RESPONDENTS. BURA HANGSEH AND BOOK SINGH . Legislative Councils, Powers of-Plenary powers of Legislation-Delegation-Jurisdiction-24 and 25 Vict., Cap. 67-24 and 25 Vict., Cap. 104, secs. 9, 11-28 Vict., Cap. 15-Letters Patent of 1865-Act XXII of 1869. The Statutes 24 and 25 Vict., c. 104., 28 Vict., c. 15, and the Letters Patent of 1865, expressly contemplate and authorize such an exercise of legislative authority by the Governor-General of India in Council, as might remove any place or territory from the jurisdiction of the High Court at Calcutta. Act XXII of 1869 was, therefore, in its general scope, within the legislative power of the Governor-General in Council. The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. When a question arises whether the prescribed limits have been exceeded, the established Courts of Justice must of necessity deter mine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they were restricted. If what has been done is legislation within the general scope of the words which give the power, and if it violates no express condition or restriction by which that power is limited, (in which category would be included any act of Parliament at 1878 THE QUEEN V. BURA HANGSEH. Judgment. LORD SELBORNE. variance with it,) it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions. When plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provincial legislature, they may be well exercised either absolutely or conditionally; and the Indian Legislature has power to legislate conditionally on the use of particular powers, or on the exercise of a limited discretion by a person in whom it places confidence. The Governor-General in Council could not, by any form of enactment, create in India, and arm with legislative authority, a new legis. lative power, not created or authorized by the Council's Act; but nothing of that kind has been done or attempted in Act XXII of 1869. APPEAL PPEAL from a decision passed by a Full Bench of the High Court of Judicature at Calcutta, which will be found reported in the first volume of the Calcutta Law Reports, page 161, and in the Indian Law Reports, Calcutta series, vol. 3, p 63. Sir James Stephen, Q.C., and Graham, for the Appellant. J. B. Norton, Raikes, and Eardley Norton, for the Respondent. The facts of the case and the arguments will be found set out in the reports abovementioned, and in the following judgment of their Lordships of the Privy Council (1), which was delivered by LORD SELBORNE :- This appeal has been brought under the following circumstances:-In the year 1869, the Indian Legislature passed an Act (No. XXII of 1869), purporting, first, to remove a district called the Garo Hills from the jurisdiction of the Courts of Civil and Criminal Judicature, and from the control of the offices of Revenue constituted by the Regulations of the Bengal Code and the Acts passed by any Legislature then or theretofore established in British India, and from the law prescribed for such courts and offices by such Regulations and Acts; and, secondly, to vest the administration of civil and criminal justice, within the same territory (1) Lord SELBORNE, Sir JAMES W. COLVILE, Sir BARNES PEACOCK, Sir MONTAGUE E. SMITH, and Sir ROBERT P. COLLIER. v. BURA HANGSEH. Judgment. Lord in such officers as the Lieutenant-Governor of Bengal might, 1878 for the purpose of tribunals of first instance, or of reference THE QUEEN and appeal, from time to time appoint. This Act was to come into operation on such day as the Lieutenant-Governor of Bengal should, by notification in the Calcutta Gazette, direct. By the 9th section, the Lieutenant-Governor was empowered" from time to time, by notification in the Calcutta Gazette," to "extend, SELBORNE. mutatis mutandis, all or any of the provisions contained in the other sections to the Jaintia Hills, the Naga Hills, and such portion of the Khasi Hills as might, for the time being, form part of British India," being, as their Lordships understand, a mountainous district, conterminous towards the east with the Garo Hills. The Lieutenant-Governor of Bengal, by notification in the manner prescribed by this Act, fixed the time at which it should come into operation in the Garo Hills; and afterwards, by another notification published in the Calcutta Gazette, on the 14th October 1871, he extended all its provisions to the district of the Khasi and Jaintia Hills, declaring the administration of civil and criminal justice within that district to be vested in the Commissioner of Assam, subject to the general direction and control of the Lieutenant-Governor, and adding that the Commissioner should exercise the powers of the High Court in the civil and criminal cases triable in the Courts of the district; provided, that no sentence of death should be carried out without the sanction of the Lieutenant-Governor, and that it should be competent for the Lieutenant-Governor to call for the record of any criminal or civil case, and to pass thereon such orders as to him might seem fit; and that the Deputy Commissioner of the district, and his assistants, the native chiefs and officers, and the subordinate officers of Government, should exercise the same powers as they had hitherto exercised, until otherwise directed. Upon this Act and these notifications, one Burah (the respondent here) and another person, since deceased, were in the year 1876 tried by the Deputy Commissioner of the Khasi and Jaintia Hills upon a charge of murder committed within that hill territory. They were convicted and sentenced to death, but on the 23rd April 1876, the sentence was commuted by the Chief Commissioner of Assam to transportation for life. On the |