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Navnitlal Chunilal Vs. Baburao (No. 2) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 6 of 1944 and Suit No. 701 of 1943
Judge
Reported inAIR1945Bom137; (1944)46BOMLR787
AppellantNavnitlal Chunilal
RespondentBaburao (No. 2)
Excerpt:
bombay rents, hotel rates and lodging house rates (control) act (bom. vii of 1944), sections 14, 9-appeal-collector-certificate by controller.;an appear to the collector, under section 14 (1) of the bombay rents, hotel rates and lodging house rates (control) act, 1944, lies from the order passed by the controller either refusing or granting a certificate under the proviso to section 9(1) of the act. - - 6, 1944, decided that the proviso to section 8, giving power to the controller to determine the question whether the premises were required reasonably and bona fide and the other powers was ultra vires and section 8 was also bad in law. in that case it was held that for the purpose of rating under the lighting and watching act, 1833, coal mines were not land, but were property other than.....harilal kania, kt., acting c.j.1. this is an ejectment suit. it originally came for hearing before blagden j. having regard to the bombay rent restriction order, 1942, issued under the defence of india rules, 1939, the landlord was bound to obtain a certificate from the controller, to show that he required the premises reasonably and bona fide for his own use. after obtaining such certificate a notice to quit was given by the plaintiffs. certain payments were made thereafter. dispute arose as to whether the same were accepted by the landlord as rent or compensation. the present suit was filed for ejectment and the defences were principally two : (1) that the certificate obtained from the controller was invalid ; and (2) that the notice to quit was waived. blagden j. held against the.....
Judgment:

Harilal Kania, Kt., Acting C.J.

1. This is an ejectment suit. It originally came for hearing before Blagden J. Having regard to the Bombay Rent Restriction Order, 1942, issued under the Defence of India Rules, 1939, the landlord was bound to obtain a certificate from the Controller, to show that he required the premises reasonably and bona fide for his own use. After obtaining such certificate a notice to quit was given by the plaintiffs. Certain payments were made thereafter. Dispute arose as to whether the same were accepted by the landlord as rent or compensation. The present suit was filed for ejectment and the defences were principally two : (1) that the certificate obtained from the Controller was invalid ; and (2) that the notice to quit was waived. Blagden J. held against the appellant, the tenant, on both the points. When the matter reached hearing on appeal, the second question about the waiver of notice to quit was fully argued. In the interval, a full bench of this Court on April.6, 1944, decided that the proviso to Section 8, giving power to the Controller to determine the question whether the premises were required reasonably and bona fide and the other powers was ultra vires and Section 8 was also bad in law. The result was that when the appeal came for hearing the question whether the certificate of the Controller was valid or not, although in dispute, was not argued, because even if invalid the appellant could not get any relief because of the decision of the full bench. The appeal was decided on April 13, 1944, The Government of Bombay thereafter passed Bombay Act VII of 1944, which was published in the Bombay Government Gazette on May 12, 1944. Under Section 14(3) of the Act the Controller was empowered to decide various questions mentioned in the proviso to Section 9 although it interfered with the jurisdiction of Courts. Section 9(2) of that Act runs as follows :

Where an order for the recovery of possession has been made in favour of a landlord on or after the 6th day of April 1944 but not executed before the date of publication of this Act, the Court by which the order was made, if it is of opinion that the order would not have been made if this Part had been in operation at the date of the making of the order, rescind or vary the order in such manner as the Court may think fit for the purpose of giving effect to this Part.

The appellant filed an appeal to the Privy Council and during the vacation obtained a rule and interim stay without any returnable date being fixed.

2. On June 9, 1944, the appellant took out a notice of motion for the following reliefs : (1) That the decree passed by the Appeal Court on April 13, 1944, be rescinded or set aside; (2) that the above appeal be placed on some board for hearing and final disposal of the first issue raised at the trial of the suit; and (3) that pending the hearing and final disposal of the said appeal the hearing of the petition of the appellant for leave to appeal to His Majesty in Council be stayed. After some discussion about the form of this notice, the Court made the order that the application be set down on board for hearing. It was considered open to the appellant to urge that if Bombay Act VII of 1944 was in operation on April 13, 1944, the Appeal Court would not have passed the order of ejectment against the appellant. Before us, it has now been contended by the Advocate General that it was not open to the appellant to raise that contention. The argument was that the Appeal Court decided the appeal against the appellant on April 13 for a reason extraneous to the present Act and in spite ofit. In my opinion that argument is unsound. On a true construction of Section 9(2) of Act VII of 1944 the Court has to place itself in the same position in which it was when the original order was passed, and reconsider the situation on the footing that Act VII of 1944 was in operation on that day. If on that footing the Court considers that the order previously passed should be rescinded or varied, it is open to the aggrieved party to ask the Court to do so.

3. On behalf of the appellant four points were .urged before us : (1) that against the order of the Controller refusing to grant a certificate no right of appeal was given under Section 14 (i) of the (new) Act; (2) that Mr. Taylor, who decided the question on appeal by the respondents, was not then the Collector of Bombay and therefore he had not passed a valid order on appeal; (3) that during the hearing, before Mr. Taylor, the rules of natural justice were not observed and therefore the decision was invalidated ; and (4) that the certificate granted by the Controller in fact is in the name of the first respondent only and therefore there is no valid certificate in favour of the landlords within the meaning of the proviso to Section 9 of the Act.

4. Points (2) and (3) may be decided first, as they involve questions of fact. As regards the position of Mr. Taylor it is a question of fact. Till the point was raised now the question, whether Mr. Taylor was the Collector or not, was not raised. It was pointed out that in the Bombay Government Gazette Mr. Faruqui was notified to be the Collector from April 6, 1943, and the subsequent notification only was that from April 5 to 12 the office of the Collector of Bombay was held by Mr. Taylor. Relying on the decisions in Govindram Seksaria v. Commissioner of Income-tax (Central) Bambay (1942) 45 Bom. L.R. 168 and Emperor v. Shankerbhai Kashibhai : (1943)45BOMLR572 it was argued that merely because an officer was stated to have held charge he did not become the officer. In my opinion, neither of these cases is applicable to the facts here. In the first case the order was actually made by a person who described himself as Assistant Income-tax Officer, while the power to make assessment was only given to an Income-tax Officer. No amount of argument therefore can lead to the conclusion that the person, who in fact held two offices, when he made an order describing himself as the Assistant Income-tax Officer, had made the order in his capacity as the Income-tax Officer. The second case was in respect of the Ahmedabad Municipality and the sanction granted by the Administrator to prosecute certain persons. The power to give such sanction was by statute vested in a different party. A subsequent notification was relied upon to show that the administrator who gave the sanction had such power. Having regard to the notifications quoted in that case it was clear that Mr. Whitworthwas not holding the position which entitled him to grant sanction, at the time he did. Apart from that, this question not having been agitated in the trial Court, it is not open to the appellant to raise it at this stage. The written statement of the appellant contains a tacit admission that the Collector had made the order at this stage. It is possible that there are documents or Government records to show that Mr. Taylor was the Collector at the time he made the order. He has described himself as such. Without an opportunity being given to the respondent to prove that Mr. Taylor was then the Collector, it is not proper to allow that question to be agitated. The question does not arise on the record and cannot be allowed to be raised at this stage.

5. The third point is whether the proceedings before the Collector were in accordance with the rules of natural justice. No rules are framed by the Government or by the office of the Controller or Collector for hearing an appeal. The result is that rules of natural justice have to be followed. On this point three submissions were made : (1) that a copy of the application, i.e. a copy of the appeal was not given to the appellant ; (2) that the appellant's legal advisers were not allowed to see the plans used by the respondents before the Collector ; and (3) that the appellant's own plans when attempted to be tendered were not looked at. These questions have been dealt with by the learned trial Judge in his judgment, and in my opinion satisfactorily disposed of. As regards the copy of the appeal it is pointed out that under Section 12 of the Order the appeal had to be in writing. A notice of the appeal was duly given by the Collector to the appellant but he did not take any steps to get a copy of the memo, of appeal. If a party knowing that a written appeal has been filed, comes to the hearing without trying to obtain a copy, it cannot be stated that the rules of natural justice were not observed. It is not shown that he was not permitted to look into the memo, of appeal. If he was handicapped in any way, his counsel could have asked for an adjournment. If on looking at the length of the memo, of appeal and the matters contained therein the application for adjournment was not granted, there might have been some grievance to support this argument. As matters stand, it is clear that although the appellant had no copy of the memo, of appeal on the first day for the use of his counsel, on the next day, when a request was made, a copy was forwarded to the legal advisers of the appellant. As regards the plans the position appears to be somewhat misconceived. The respondents had no regular plans. They had prepared only sketches, which were not drawn to scale. The appellant's plans, were attempted to be tendered, but at that time it appears to be suggested that instead of going into the accuracy of the sketches and plans the Collector himself should go and see the premises. Thereafter the plans were not referred to by either party. It is admitted that the Collector in fact thereafter, with the approval of both sides, visited the premises and for himself looked at what the respondents Were in occupation, and what the appellant was in occupation and what the respondents wanted to occupy. In my opinion the evidence does not show any disregard of the rules of natural justice. That contention of the appellant therefore fails.

6. The first ground urged is whether an appeal lay to the Collector. The short facts are that respondent No. 1 applied for a certificate from the Controller. On consideration of the materials before him the Controller refused to give the certificate. Both the respondents filed an appeal. The memo, of appeal set out in detail why the premises were required by the respondents for their own use. On that appeal there were hearings and the Collector decided that the order of the Controller should be set aside, and a certificate should be granted that the premises were reasonably and bona fide required by the landlord for his own use. It is evident that in making the order the use of the singular word is inappropriate. The memo, of appeal was filed by both the respondents and there appears nothing in the reasoning of the Collector to show that the Collector had distinguished the case of the two appellants. It was considered as disposing of the appeal as made by both the respondents. After the order was so written out by the Collector he drafted two letters ; one intended to be forwarded to the Controller and the other to the two parties. In the letter which was drafted for the parties it was stated as follows :

I have decided that a certificate be granted by the controller certifying that the premises occupied by Mr. N.C. Jhaveri in Bhat Building...are reasonably and bona fide required by the landlord for his own occupation.

Owing to Mr. Taylor handing over charge to Mr. Faruqui the letter was actually signed by Mr. Faruqui. The words there used are identical with the draft which was left by Mr. Taylor in the office. On receipt of the communication from the Collector's office the Controller issued a certificate in the following terms :

Pursuant to the decision of the Collector of Bombay in appeal it is hereby certified, for the purposes of proviso, to Clause 8 of the Bombay Rent Restriction Order, 1942, that the premises on the west side, second floor, in Bhat Building...at present occupied by Mr. N, C Jhaveri are reasonably and bona fide required by Mr. Baburao K. Pai, the landlord for his own occupation.

On receipt of this certificate the respondents gave notice to the appellant intimating that the two owners of the property had obtained a certificate from the Controller and asking the appellant to vacate. The question argued before us is that having regard to the wording of Section 14(1) of Act VII of 1944 there is no right of appeal against an order refusing a certificate. It was contended that there is no reason to believe that the policy of the Act was not to allow such an appeal, as it was an Act for the benefit of the tenant. It was further pointed out that in respect of such appeal no procedure was laid down. Relying on the words used in parenthesis in Section 14(1), it was argued that as the Legislature had expressly provided for an appeal in respect of an order granting a certificate under the proviso (I) to Section 9, it had inferentially debarred an appeal against an order refusing a certificate by the Controller. As against this argument it is pointed out on behalf of the respondents that originally Section 12 of the Bombay Rent Restriction Order was in these terms .

Any person aggrieved by a certificate granted or an order passed by the Controller under the provisions of this Order may, within fifteen days from the date on which the Order is communicated to him, present an appeal in writing to the Collector of Bombay.

It was urged that the words ' a certificate granted or ' were deliberately omitted to exclude the argument that an appeal was provided only in respect of a certificate granted and not in respect of a certificate refused.. It was urged that in order to carry out this object the Legislature had framed Section 14 now so as to make all orders passed by the Controller appealable, and lest there may be any doubt about a certificate granted by the Controller (which words were omitted from the old section) it was expressly provided, in the parenthesis, that such an order was also appealable. It was further pointed out that it is a wrong principle of construction to urge that when general words are first used, giving a right of appeal against all orders, that right became limited to a certain contingency, merely because one instance of that class of contingency was mentioned in parenthesis. As regards the rule of construction counsel for the appellant relied on Lead Company v. Richardson (1762) 3 Burr. 1341 and The King v. Sedgley (1831) 2 B. & Ad. 65 and Thursby v. Churchwardens, &c.;, of Briercliff-with-Extwistle [1895] A.C. 32. The two older cases were in respect of a Rating Statute and the question arose whether a coal mine was liable to be rated in a particular way. Both those decisions came to be considered in Thwiby v. Churchwardens of Brier cliff. In that case it was held that for the purpose of rating under the Lighting and Watching Act, 1833, coal mines were not land, but were property other than land rateable to the relief of the poor within the meaning of Section 33 and were therefore rateable on the higher scale, though they could not derive any benefit from the rate. The relevant section provided that

the owners and occupiers of houses, buildings and property (other than land) rateable to the relief of the poor in any such parish shall be rated at and pay a rate in the pound three times greater than that at which the owners and occupiers of land shall be rated at and pay for the purposes of this Act.

The contention on the part of the appellant in that case was that a coal mine was land and therefore fell to be rated at a lower rate. The Court below had given effect to the contention of the respondents that a coal mine was not land, within the meaning of that provision, and therefore was to be rated at the higher rate. In dealing with these rival contentions Lord Herschell L.C. stated as follows (p. 37) :

A question was raised many years ago whether mines other than coal mines were rateable. It was held that they were not, on account of the specific mention of coal minea as a subject of rating. Of course the contention that they were rateable would reat upon this, that the word ' lands' was large enough to cover them. That was undoubtedly true; but it was nevertheless decided-ultimately in this House-that the specific mention of coal mines as a subject of rating shewed that the Legislature did not intend other mines to be rated. If so, it shewed, as it seems to me, that the word ' lands ' in the statute of Elizabeth was used in idl more restricted and limited sense so as to exclude all mines. Of course coal mines being specifically mentioned were rated, not by the use of the word ' lands ' but by their express inclusion. Other mines were not rated because the express provision relating to coal mines shewed that the word ' lands ' was not used in a sense which would include them.

7. In my opinion a plain reading of Section 14 shows that all orders passed by the Controller are appealable. It is desirable to note in this connection that in Section 26 in Part III and Section 35 in Part IV similar words are used. The words used in the parenthesis in Section 14 are also included in Section 26, where a certificate of the Controller of the nature provided in Section 22 was contemplated. These words are absent from Section 35. (Secondly, the words 'or refusing a certificate' could not have been inserted in the parenthesis in Section 14(5) after the words ' including an order granting ' because in the proviso to Section 9 of the Act a refusal of a certificate is not contemplated. In the proviso to Section 9 the question of granting a certificate only is dealt with. In my opinion, the argument that by the words used in the parenthesis, the order granting a certificate, which was otherwise not appealable was made so, is unsound, because it is based on a wrong principle of construction. The general words used in the first sentence of Section 14 cannot be controlled by -the words used in the parenthesis which start with the word ' including.' The use of that word clearly shows that Legislature did not intend in any way to curtail the operation of the words used in the first part of that section, but only wanted to amplify and set at rest a particular contention, which might be possibly advanced. The cases relied upon are also, in my opinion, not relevant for the present discussion. In those cases there were no general words used in the first instance to show what was taxable, and the word ' including' was not used in the relevant section. Moreover, all those statutes were taxing statutes and according to the general principle of construction it was for the taxing authorities to point out why a particular party was liable to pay the tax claimed. The contention that no machinery is provided to give effect to the decision of the Collector may be an element to be considered, but that cannot override the words of Section 14 (1). After the Collector gave his decision it was a matter for administrative orders to carry out the same. That required no separate procedure necessarily. Undue stress therefore cannot be put on the absence of such machinery. The power to make rules is given in the Act, and it is futile to argue that if rules are framed an appeal would lie ; but till then there was no right of appeal. I think that the words used in Section 14 are general and should be given full effect to.

8. As regards the question whether the decision of the Controller refusing a certificate is an order, In re Lamb : Ex Parte Board of Trade [1894] 2 Q. B. 805 may be noticed. In that case under the Bankruptcy Act, the Board of Trade if satisfied with the security given by a person appointed by the creditors to be a trustee of the property of a bankrupt had to certify that his appointment had been duly made, unless they objected to the appointment on the ground that the person appointed was not fit to act as trustee. Sub-section (3) of Section 22 of the Act provided that. In dealing with the question whether the decision amounted to an order Lord Esher M. R. observed as follows (p. 811) :

Whenever there is a dispute between parties which is carried before a judge in his judicial capacity, and which he has to decide, his decision is a determination after a hearing, and is equivalent to a judgment. Upon that the judge is bound to make some order, either refusing. or granting the application.

The definition of 'Order' in the Civil Procedure Code also supports this view. It is therefore clear that just as a decision granting a certificate is an order on the application made by the landlord, so also the decision refusing a certificate is equally an order made by the Controller. Therefore the general words used in Section 14 of the Act are wide enough to cover the decision of the Controller refusing a certificate.

9. The last contention was in respect of the wording of the certificate ultimately granted by the Controller. The events showing how this certificate came to be granted are plain. They show that all along respondent No. 1 had acted on behalf of himself and his wife. The appeal made to the Collector against the order of the Controller was in the name of both the respondents. Simply because, through inadvertence, the Collector used ' landlord ' in singular, I do not think that the clear meaning of his decision should be defeated. The wording used by the Collector in his draft letters leaves the matter open and simply because in the certificate actually issued the name of respondent No. 1 is mentioned, I do not think it. is legitimate to hold that the Collector or the Controller in fact issued a certificate only to respondent No. 1 and not for the benefit of the landlords as such. This aspect of the case is particularly noticeable here because the two respondents are husband and wife, and throughout these proceedings it is shown that they wanted to have the premises for their joint use as they and their children are all living together. Except therefore for the ingenuity of the argument I do not think there is any substance in it. This certificate was put forward as a ground for giving the second notice to vacate. The wording of that notice clearly shows that the certificate was understood as having been given to the landlords and on receiving that notice the present appellant or his legal advisers did not contend that the certificate was defective in any way. This contention was raised for the first time after the suit was filed, to defeat the plaintiffs' case. Having regard to the facts of this case I do not think it is necessary to decide the larger question about the definition of ' landlord' in the Act and the use of the word ' landlord ' in Section 9. In my opinion, the word ' landlord ' used in the certificate under the circumstances clearly means landlord or landlords for the time being, and the insertion of the name of respondent No. 1 in the certificate is unnecessary and should be overlooked.

10. The result is that the appellant's further contentions fail and we do not see any reason to rescind or vary in any manner the decree passed on April 13, 1944.

Chagla, J.

11. I agree. Mr. Desai on behalf of the appellant has advanced a very able and ingenious argument that the order of the Controller refusing the certificate is not appealable under Section 14 of the Act. Mr. Desai contends that when the Controller decides either to give a certificate or to refuse it, that decision of his is not an order. He says that such a decision contains no element of mandate nor do any consequences follow such a decision. It is urged that even though a landlord may obtain a certificate, he may do nothing further about it and no consequences would follow from his having obtained the certificate. I do not think Mr. Desai's contention is correct, because, when the Controller gives a certificate or refuses to give it, he does determine the rights of the parties. What he determines is in one case that the landlord reasonably and bona fide requires the premises for his own occupation and in the other case that he does not so require the premises for his own occupation. Therefore in my opinion the decision of the Controller in either of the cases is an order.

12. If that be so, the construction of Section 14 is not very difficult. Section 14 makes an order passed by the Controller appealable. Then comes the parenthesis which says ' including an order granting a certificate under the proviso to Sub-section (1) of Section 9.' In my opinion this parenthesis is merely illustrative. It gives an example of one of the orders that the Controller may pass and it is merely provided for abundant caution. I do not think Mr. Desai is right when he contends that the framers of the Act specified one form of order and thereby by implication they excluded the other order, viz. the order refusing a certificate. We cannot possibly construe the section by cutting down the generality of the) words ' Any person aggrieved by an order passed by the Controller....' because of the words ' including an order granting a certificate under Sub-section (I) of Section 9.'

13. It is further argued that, under the proviso to Section 9, what is required is that aland-Ioki has to obtain a certificate from the Controller who has to certify the various facts mentioned in that proviso. It is stated that in this case the certificate which the landlord has obtained is not a certificate from the Controller but from the Collector. Now the position in this case is this. The Controller refused to grant a certificate. On that an appeal was preferred under Section 14 to the Collector. What the Collector did was to reverse the decision of the Controller and held that the Controller should have issued a certificate on the facts and materials before him. It is true that in Mr. Taylor's decision what he says is that the order of the Rent Controller is set aside and a certificate is granted to the appellant that the premises are required reasonably and bona fide for his own occupation. But when one peruses the correspondence that follows Mr. Faruqui in his letter of April 15, 1943, to the Rent Controller says :-

I forward a copy of decision in the appeal under Section 12 of the Bombay Rent Restriction Order, 1942, Mr. B.K. Pai v. N.C. Jhaveri with reference to your order of 26-2-1943 and to,return all the papers in the case.

In the letter addressed to the parties Mr. Faruqui who was then the Collector says,

I have decided that a certificate be granted by the Controller certifying that the premises occupied by Mr. N. C. Jhaveri in Bhat Building...are reasonably and bona fide required by the landlord for his own occupation.

The Controller himself in his certificate states, ' Pursuant to the decision of the Collector of Bombay in appeal it is hereby certified that' Mr. Pai the landlord requires the premises reasonably and bona fide for his own use. It is argued that Section 9 requires that the Controller himself must apply his mind to the granting of the certificate. It must be his decision and not the decision of the Collector. Now under Section 14(3) of the Act the decision of the Controller is final subject only to any decision by the Collector, and as we have already held that the order of the Controller is appealable, his decision with regard to the granting of the certificate is subject to any decision that the Collector may arrive at. Therefore in this case it was the decision of the Collector that the Controller should issue a certificate, but the certificate that the landlord obtained was the certificate of the Controller.

14. It is further urged that there is no provision in the Act whereby the Collector can direct the Controller to issue a certificate. To my mind this is merely an administrative detail which it was not necessary specifically to provide in the statute. Since the Collector decided the appeal and reversed the decision of the Controller and came to the conclusion that he ought to have issued a certificate, the issuing of the certificate by the Controller followed as a necessary conclusion.

15. It is further argued that in this case the) landlord has not in fact obtained a certificate because the property is owned not only by respondent No. 1 in whose name the certificate was issued but also by his wife respondent No. 2. On the one hand itis argued by Mr. Desai that the expression ' landlord ' in the proviso to Section 9 should be construed with a reference to its definition given in Section 4 which says that any person for the time being entitled to receive rent is the landlord. It is contended that as both the respondents were the owners of the property they were both entitled to receive rent, and therefore the certificate obtained by only one of them was not the certificate contemplated by the proviso to Section 9. On the other hand it is argued by the Advocate General that the expression ' landlord ' in the proviso to Section 9 means a landlord who reasonably and bona fide requires the premises for his own use, and if there were more than one owner, then the owner who requires the premises for his own us was the owner who should obtain the certificate as required. I agree with the learned Chief Justice that under the circumstances of this case it is not necessary to decide the question of construction. To my mind the flaw, if any, in the certificate is purely technical and is not fatal to the plaintiffs case. I further agree with the learned Chief Justice that this objection should have been taken by the appellant at an earlier stage. If the appellant had taken this objection after the notice to quit was given on April 20, 1943, where it was specifically stated by the plaintiffs' attorneys that their clients plaintiff No. 1a sd plaintiff No. 2 had issued to them a certificate from the Rent Controller, then the plaintiffs would have had sufficient time to get the defect cured before filing the suit.

16. The third contention of Mr. Desai is that his client did not obtain a fair trial before the Collector. What he urges is that the hearing before him was so rushed that rules of natural justice were contravened. It is to be remembered that the provisions of the Act are in the nature of summary proceedings, and I think that it is but right that both the Controller and the Collector should dispose of the applications before them with the utmost despatch and expedition, of course always bearing in mind that the principles of natural justice are carefully observed. Now the two main objections to what happened before, the Collector are that, firstly, Mr. Desai's client was not given a copy of the memo, of appeal. It is to be borne in mind that it was perfectly competent to his counsel who appeared before the Collector to apply for an adjournment so that he could have time to consider the matter. No suchapplication was made. Presumably therefore his counsel was prepared to go on with the hearing without looking into the memo, of appeal. His second grievance was that although the Collector looked at the plans produced by the! plaintiffs whichwere on the face of them incorrect, he refused to permit the plans prepared by the defendant to go in as evidence. Here again the important fact to remember is that the Collector himself went and saw both the premises and after making all the inquiries and seeing things for himself he came to his conclusion. I therefore do not think that in not permitting the plans of the defendant to go in any prejudice was caused to the defendant It would have been different if he had merely looked at the plans produced by the plaintiffs and had not satisfied himself as to proper facts by personal visit.

17. The last ground taken is that Mr. Taylor was not the Collector and was not competent to hear or decide the appeal. This is, as the learned Chief Justice has pointed out, a question of fact. It was never put in issue by the defendant at the trial before Blagden J. and no opportunity was given to the plaintiffs to establish this fact. On the contrary if one looks at the record before the learned trial Judge there is an express and certainly a tacit admission that Mr. Taylor was the Collector who was competent to hear and decide the appeal.

18. On these grounds I agree with the order proposed to be made by the learned Chief Justice.

19. Notice of motion taken out by the appellant is dismissed. The appellant to pay the costs of the hearing of this application in Court as ordered on the notice of motion.


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