Skip to content


The Municipal Corporation of Greater Bombay Vs. Bhagwandas Dwarkadas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 462 of 1972
Judge
Reported inAIR1978Bom271; (1978)80BOMLR193; 1978MhLJ43
ActsBombay Municipal Corporation Act, 1888 - Sections 68, 68B, 329(2), 354, 489, 491, 505, 503, 503(2) and 506 ; Presidency Small Cause Courts Act - Sections 38
AppellantThe Municipal Corporation of Greater Bombay
RespondentBhagwandas Dwarkadas and anr.
Advocates:S.D. Gavaskar, ;M.V. Shetty, ;N.V. Kamat and ;P.B. Karhadkar, Advs.
Excerpt:
.....(bom. iii of 1888), sections 503, 506, 491, 354 and 489 - whether it is necessary for the bombay municipal corporation to first have the exact amount of dues ascertained under section 503 before it files a suit under section 506 of the bombay municipal corporation act.;where a demand is made under section 491 (to recover expenses incurred in respect of any work executed under the order of the commissioner) and either the right to demand the expenses or the amount of the expenses is disputed, then it is obligatory on the municipal commissioner to refer the case for determination of the said amount by the chief judge of the small cause court under section 503(1) of the bombay municipal corporation act. section 503(2) requires the municipal commissioner to defer further proceedings for..........section. 503 before it takes recourse to a suit made permissible by section. 506 of the bombay municipal corporation act (hereinafter referred to as 'the act'). the facts are not in dispute. a house belonging to the opponents who are not represented in this petition having been found to be in a dangerous and/or ruinous state a notice tinder section. 354 of the act calling upon the owners to carry out certain work in respect of the house to avoid the risk was issued. the owners were required to carry out repairs to the flooring of the rearmost rooms of the second and third floors. the opponents (owners) of the house failed to carry out the necessary repairs and the municipal commissioner, therefore, got that work executed through an approved contractor in the exercise of his powers.....
Judgment:
ORDER

1. The only question which arises in this petition is whether it is necessary for the Bombay Municipal Corporation to first have the exact amount of dues ascertained under Section. 503 before it takes recourse to a suit made permissible by Section. 506 of the Bombay Municipal Corporation Act (hereinafter referred to as 'the Act'). The facts are not in dispute. A house belonging to the opponents who are not represented in this petition having been found to be in a dangerous and/or ruinous state a notice tinder Section. 354 of the Act calling upon the owners to carry out certain work in respect of the house to avoid the risk was issued. The owners were required to carry out repairs to the flooring of the rearmost rooms of the second and third floors. The opponents (owners) of the house failed to carry out the necessary repairs and the Municipal Commissioner, therefore, got that work executed through an approved contractor in the exercise of his powers under Section. 489 of the Act. Under Section, 491 of the Act expenses so incurred are recoverable from the owner. The owners, however, disputed the amount as also the right of the Municipal Corporation to recover the amount. The Municipal Corporation, therefore, filed a suit for recovery of the amount of Rs. 680.80 p. from the defendants which included 15 per cent of supervision charges. The Small Cause Court dismissed the suit because it took the view that the suit as contemplated by Section. 506 could be filed only after the amount due had been determined under Section. 503 of the Act. This decision of the learned Judge of the Small Cause Court has been upheld by a Bench of that Court in an application under Section. 38 of the Presidency Small Cause Courts Act. The Municipal Corporation has now challenged the dismissal of the suit. In this petition it is contended on behalf of the Municipal Corporation by Mr. Gavaskar that a suit in respect of amount of expenses incurred by the Commissioner and to re-caver which he was empowered under Section. 491 of the Act could be aide by the Municipal Corporation without having the amount determined in the manner provided under Section. 503 and, therefore, the suit filed by the Municipal Corporation against the defendants was maintainable. A reference to some provisions of the Act is necessary in order to decide this question. Section 491 of the Act which enables the Municipal Corporation to recover expenses incurred in respect of any work executed under the order of the Commissioner reads as follows:--

'491. (1) Whenever under this Act, or any regulation or by-law made under this Act, the expenses of any work executed or of any measure taken or thing done by or under the order of the Commissioner or the General Manager or of any municipal officer empowered under Section. 68 or 68-B in this behalf are payable by any person, the same shall be payable on demand.

(2) If not paid on demand the said expenses shall be recoverable by the Commissioner or the General Manager subject to the provision of Sub-section (2) of Section. 503, by distress and sale of the goods and chattels of the defaulter, as if the amount thereof were a property-tax due by the said defaulter.' Thus, under Section 491 (1), the expenses recoverable could be recovered by distress and sale of the goods and chattels of the defaulter as if it was property-tax due by the defaulter; but this is made subject to the provisions of Section. 503 (2) of the Act. Sections 503, 504, 505 and 506 are clubbed together under a common heading 'Recovery of expenses or compensation in case of dispute.' Section 503 reads as follows :--

'503. (1) If, when the Commissioner or the General Manager demands payment of any expenses under Section. 491, his right to demand the same or the amount of the demand is disputed, or if, in the case of expenses incurred by the Commissioner in taking temporary measures under Sub-section (2) of Section. 329, the necessity for such temporary measures is disputed, the Commissioner or the General Manager, as the case may be, shall refer the case for the determination of the Chief Judge of the Small Cause Court.

(2) Pending the Chief Judge's decision the Commissioner or the General Manager, as case may be, shall defer further proceedings for the recovery of the sum claimed by him and, after the decision, shall proceed to recover only such amount, if any, as shall be thereby ascertained to be due.'

Sections 504 and 505 are not material for the present purpose because Section. 504 deals with a case not falling under Section 491 and with expenses or compensation required to be paid by a person by the Act or by the regulation or bye-law made under the Act. In such a case, under Section. 505, it is provided that if the amount of any expenses or compensation ascertained under Section. 504 is not paid by the person liable to pay the same on demand, it shall be recoverable as if the same were due under a decree of the Small Cause Court. The effect of Section 503 (1), therefore, is that where a demand is made under Section. 491 and either the right to demand the expenses or the amount of the expenses is disputed, then it is obligatory on the Municipal Commissioner to refer the case for determination of the said amount by the Chief Judge of the Small Cause Court. Sub-section (2) of Section. 503 requires the Municipal Commissioner to defer further proceedings for the recovery of the sum claimed by him pending the decision of the Chief Judge. Thus, when Section. 491 makes the distress proceedings subject to the provisions of Section, 503 (2), it means that if in the course of the distress proceedings the right to demand the expenses or the quantum of the expenses is disputed, then those proceedings have to be stayed pending the decision of the Chief Judge under Section 503(1). Then comes Section. 506 which reads as follows :--

'506. Instead of proceeding to any manner aforesaid for the recovery of any expenses or compensation of which the amount due has been ascertained as hereinbefore provided, or after such proceedings have been taken unsuccessfully or with only partial success, the sum due, or the balance of the sum due, as the case may be, .may be recovered by a suit brought against the person liable for the same in any Court of competent jurisdiction.'

Section 506, therefore, is an enabling provision which enables the Municipal Corporation to file a suit to recover expenses or compensation claimed by it. But the section makes it clear that such a suit must be for recovery of any expenses or compensation of which the amount due has been ascertained 'as hereinbefore provided'. The provisions with regard to ascertainment of the amount of expenses or compensation referred to in Section. 506, as already pointed out, are to be found in Sections. 503 and 504. The proceedings referred to in the opening words of Section. 506 are proceedings for recovery of the amount of expenses or compensation as provided by Section. 491, which, if stayed pending the decision under 503 of the Act can be revived after such decision or if there is a determination under Section. 504 of the Act, the proceeding permissible under the Act is in the manner provided by Section. 505. What Section. 506, however, does is that option is given to the Municipal Corporation to take recourse to a suit instead of the proceedings provided by Sections. 491 and 505. Section 506 opens with the words 'instead of proceeding in any manner aforesaid'. The manner aforesaid has obviously reference to the distress proceedings under Section. 491 and the proceedings contemplated by Section. 505. It is, therefore, left to the Corporation either to proceed under Section. 491 or under Section. 505 after the amount has been determined under Section 503. It may be necessary for the Municipal Corporation to take recourse to a suit even in a case where the proceedings taken under the earlier provisions have been unsuccessful or they have been partially successful. In such a case where the proceedings are wholly unsuccessful, the entire amount could be recovered by a suit and where the proceedings are partially successful, the suit' will have to be for the balance of the amount due. But one of the essential: requirements of Section. 506 is that before al suit is filed by the Municipal Corporation the amount must be ascertained under Section. 503 if it Is disputed. The object of the Legislature appears to be to give a right of suit to the Corporation only to recover an ascertained amount and not to leave the question of the right to recover the amount or the quantum of the amount to be determined in the suit itself. On a plain reading of Section. 506, therefore, it is clear that it provides for an alternative remedy which can be resorted to only after the amount of the compensation is properly determined by the Chief Judge of the Small Cause Court under Section. 503 (1). It is, therefore, not possible to accept the contention on behalf of the Municipal Corporation that a suit under Section, 506 can be filed without having the amount due ascertained under Section. 503.

2. There is thus no error in the view taken by the Small Cause Court. The petition must, therefore, fail and the Rule is discharged. However, as there is no appearance for the opponents, there be no order as to costs.

Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //