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Charles E. Ring Vs. the Collector of Bombay - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai
Decided On
Case NumberO.C.J. Miscellaneous No. 35 of 1947
Judge
Reported in(1948)50BOMLR146
AppellantCharles E. Ring
RespondentThe Collector of Bombay
Excerpt:
.....power extends to order made prior to passing of act-power of review whether circumscribed by order xlvii, rule 1, civil procedure code, 1908.;section 38 of the bombay rents, hotel rates and lodging house rates (control) act, 1944 not retrospective in its operation, and therefore orders made prior to its coming into force are not subject to a power of review.;gardner v. lucas (1878) 3 app. cas. 582 and delhi cloth and general mills co. v. income tax commissioner delhi (1927) l.r. 54 i.a. 421 : s.c. 30 bom. l.r. 60, referred to.;the power of review provided under section 38 of the bombay rents, hotel rates and lodging house rates (control) act, 1944, is circumscribed by the provisions of order xlvii, rule 1, of the civil procedure code, 1908. if therefore, the collector entertains and..........flat in his occupation by the end of september 1943. the petitioner claimed protection under the bombay rent restriction order, 1942. on october 5, 1948, the corporation applied to the rent controller for a certificate that the flat was reasonably and bona fide required by them for their own use and occupation under the provisions of clause 8 of the bombay rent restriction order, 1942. after hearing the parties the rent controller intimated to the said corporation that he was unable to issue the certificate applied for. the said corporation presented a memo of appeal to the then collector of bombay, mr. n.a. farrouqui, who after hearing the parties declined to interfere with the order of the rent controller and rejected the appeal of the corporation on february 25, 1944. thereafter a.....
Judgment:

Tendolkar, J.

1. This is a petition for the issue of a writ of certiorari against the Collector of Bombay. The petitioner is a tenant of a building known as Wellesley House, situate at Cooperage, Bombay. It appears that sometime in 1943 the Bombay Xavierian Corporation Limited (which I will hereafter refer to as the Corporation) purchased this property for the purpose of conducting a school therein. Having purchased it, they gave a notice to the petitioner to vacate the flat in his occupation by the end of September 1943. The petitioner claimed protection under the Bombay Rent Restriction Order, 1942. On October 5, 1948, the Corporation applied to the Rent Controller for a certificate that the flat was reasonably and bona fide required by them for their own use and occupation under the provisions of Clause 8 of the Bombay Rent Restriction Order, 1942. After hearing the parties the Rent Controller intimated to the said Corporation that he was unable to issue the certificate applied for. The said Corporation presented a memo of appeal to the then Collector of Bombay, Mr. N.A. Farrouqui, who after hearing the parties declined to interfere with the order of the Rent Controller and rejected the appeal of the Corporation on February 25, 1944. Thereafter a Full Bench of this Court in Shetty v. Maharaja of Morvi (1944) 46 Bom. L.R. 807 F.B. held that the Bombay Rent Restriction Order, 1942, was ultra vires. As a result of this decision Act VII of 1944, known as the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, was passed. This Act was, as I will point out later, retrospective in certain particulars and included for the first time a provision for review of the orders made by the Controller or the Collector. Taking advantage of this provision, on October 14, 1946, i.e. more than two years and eight months after Mr. Farrouqui's order in appeal was made, the Corporation presented a petition for a review of the order made by the Collector on the ground that the said order appeared to have been made 'on account of some mistake or error apparent on the face thereof.' This petition for review was entertained by the successor of Mr. Farrouqui, Mr. R, G. Davies, and on January 81, 1947, he passed the following order:

After accepting the application in review under Order XLVII. Rule 1, of the Civil Procedure Code and after reading the papers, hearing the parties represented by their solicitors, and inspecting the premises in question I am satisfied that the applicants bona fide and reasonably require the premises now occupied by the respondent. I therefore set aside the order of the learned Rent Controller dated November 20, 1943, confirmed by the Collector of Bombay dated February 25, 1944, and allow the appeal under review.

2. On this petition it is contended on behalf of the petitioner (1) that there was no power of review conferred on Mr. Davies at all; (2) that if there was any such power, that power could only be exercised on one of the grounds set out in Order XLVII, Rule 1, of the Civil Procedure Code, and in this case, as the order itself shows, Mr. Davies purported to exercise the power on a ground which is not covered by the provisions of Order XLVII, Rule 1; (3) assuming that this was a petition for review of the order on the ground that there was a mistake or error apparent on the face of the order, that mistake or error was not of a clerical or mathematical nature and therefore the review could only have been entertained by the same individual who made the original order and not his successor, and (4) that in any event there was a bar of limitation in that the application for review was entertained after two years and eight months from the date of the order of the Collector. If any one of these contentions of the petitioner is sustainable, then a writ of certiorari must be issued and the order must be set aside.

3. I will proceed to deal with these contentions in the order in which I have set them out above. The power of review is claimed on the basis of Section 38 of Act VII of 1944, which is in these terms:

The Controller or Collector may review any order passed by him under any part of this Act.

This section appears in Part V of the Act. Section 14 of the same Act provides for a right of appeal against the order of the Controller to the Collector. Section 15(2) of the same Act says:

Every order passed or act done by such Controller or by the Collector acting or purporting to act in the exercise of the powers under the said Order (Bombay Rent Restriction Order, 1942) shall be deemed to have been passed or done under this part.

Both Sections 14 and 15 appear in Part II of the Act, and Section 2 of the Act provides that Part II shall be deemed to have come into operation in the areas specified in column 1 of schedule A from the dates specified in column 2 of the said schedule. So far as the City of Bombay is concerned, the schedule provides April 22, 1942, as the date on which Part II shall be deemed to have come into effect. It is therefore urged on behalf of the Corporation that the order of Mr. Farrouqui, which was made under the Bombay Rent Restriction Order, 1942, shall be deemed to be an order under Act VII of 1944; and since it is an order under the Act of 1944, it is to be subject to the power of review given by Section 38. On the contrary, the petitioner urges that the power of review conferred by Clause 38 is only in respect of orders made under any part of the Act and not in respect of orders deemed to have been so made.

4. Where the Legislature intends that any new legislation should apply both to orders made as well as orders deemed to have been made under any prior legislation, the Legislature so provides specifically. For example, The Essential Supplies (Temporary Powers) Act, 1946, provides in Section 17(2) as follows:

Any order made or deemed to be made under the said Ordinance and in force immediately before the commencement of this Act shall continue in force and be deemed to be an order made under this Act.

I have therefore to determine whether Section 38 of the Act of 1944 is retrospective in its operation, and in doing so I cannot be guided wholly by a consideration of the two rival arguments that I have set out above. In determining whether any provision in a statute is or is not retrospective, where the statute is silent on the point, there are some well recognised principles of construction. One of such principles is that if parts of a statute are expressed to be retrospective and other parts expressed not to be retrospective, and there are yet others in respect of which the Legislature does not state whether they are retrospective or not, the Court has to examine the subject matter of the enactment and to bear in mind the effect of the construction which would make it retrospective in order to determine whether the Legislature intended that it should be retrospective. These propositions will be found laid down by the House of Lords in Gardner v. Lucas (1878) 3 App. Cas. 582 where Cairns L.C. states this (p. 589):

The second and only other question is as to the effect of the Act of 1874. My Lords, upon that I must say that 1 think there is considerable foundation for the elaborate examination which the learned Counsel at the Bar made of the different sections of that Act. No doubt there is, with regard to some of its sections, a very clear statement that they shall apply only to instruments written after the passing of the Act; and with regard to other sections, there is an equally clear statement that those sections shall apply to things done both before and after the passing of the Act; and there is a third class of cases, of which the 38th and 30th sections are examples, in which the Act contains no clear and explicit statement of whether it is to be retrospective or merely to be prospective. Hut in a case of that kind your Lordships have to examine the subject-matter of the enactment of the particular section which you have to construe, to bear in mind the effect of a construction which would make it retrospective, and to ask yourselves whether it is to be supposed that that construction was intended by the Legislature to be given to it.

There is yet another canon of interpretation to be kept in mind and that is that where any statute relates to matters of procedure only it should be deemed to be retrospective, unless that construction is textually not possible. But where a statute affects any right in existence at the time when the statute was enacted, it should not be construed to be retrospective unless there is clear language to that effect. This proposition was laid down by their Lordships of the Privy Council in the case of Delhi Cloth and General Mills Co. v. Income Tax Commissioner, Delhi 30 Bom. L.R. 60 where Lord Blanesburgh states the law thus (p. 425):

The principle which their Lordships must apply in dealing with this matter has been authoritatively enunciated by the Board in the Colonial Sugar Refining Co. v. Irving [1905] A.C. 369where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided.

Keeping these two principles of construction in mind I have got to determine whether the provision in Section 38 of the Act of 1944 is retrospective. Now it is to be remembered that under the Bombay Rent Restriction Order, 1942, Section 12 of that Order provides for an appeal to the Collector against the Order made by the Controller, and Sub-section (3) of Section 12 in terms provides that the decision of the Controller, subject only to the order in appeal by the Collector, shall be final. So that when Mr. Farrouqui made his order in this case, that order was final by virtue of the provisions of Section 12(3) of the Bombay Rent Restriction Order, 1942. If I construe Section 38 as rendering this order subject to a power of review, I would be depriving this order of its finality which it had at the date on which it was made. Moreover, Parts II, III and IV of the Act of 1944 have been specifically made retrospective by Section 2 of that Act to the extent indicated in that section; and the Legislature has thought fit not to make Part V, in which Section 38 is to be found, retrospective. Were I to hold that Section 38 was retrospective, it would necessarily mean that the numerous orders that must have been made prior to that date by the Rent Controller and the Collector of Bombay under the Order of 1942 would all suddenly become subject to review years after they were actually made and had become final under the provisions of the law which then prevailed. I can find no reason why the Legislature should have intended to bring about such a state of affairs; and I am not prepared to hold that in enacting Section 38 the Legislature intended that the orders which were made prior to the Act of 1944 coming into force became subject to a power of review. That really disposes of the petition. But since other points have been argued before me, I wish to state shortly my conclusions on them as well.

5. The second submission of the petitioner is that the power of review is circumscribed by the provisions of Order XLVII, Rule 1, of the Civil Procedure Code. That indeed cannot be disputed because Section 38 itself states that the provisions of Order XLVII shall, as far as may be, apply to such review. Order XLVII, Rule 1, states the grounds on which a review application may be entertained. The first of such grounds is the discovery of new and important matter of evidence with which we arc not concerned in this case. The second ground is 'on account of some mistake or error apparent on the face of the record' and the third ground is 'any other sufficient reason.' Now the words 'any other sufficient reason,' have been the subject matter of decisions, and it has been held by their Lordships of the Privy Council that these words mean 'a reason sufficient on grounds analogous to those previously specified.' See Chhaju Ram v. Neki 24 L.R. 1238. If the Collector wished to exercise the power or review, he could do so only on any of these three grounds. The ground suggested in the present case is an error apparent on the face of the order itself of Mr. Farrouqui. If the Collector entertained and disposed of the review application on any ground which does not fall within the four corners of Order XLVII, Rule 1, he exercised a jurisdiction which he did not possess or exceeded the jurisdiction for review conferred on him, and the Court would interfere to prevent him from doing so. The order made by Mr. Davies states in terms that he has set aside the order of the Rent Controller dated November 20, 1943, and the order of the Collector of February 25, 1944, because 'I am satisfied that the applicants bona fide and reasonably require the premises now occupied by the respondent'. To my mind this is not a ground on which a review could have been granted. Mr. Davies had no jurisdiction to decide afresh whether or not the requirement of the Corporation was reasonable and bona fide. He could only review the order of his predecessor if he came to the conclusion that there was an error apparent on the face of the record. I am therefore of the opinion that this contention of the petitioner is also valid.

6. The third contention of the petitioner is based on the provisions of Order XLVII, Rule 2. That rule is in these terms:

An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge who passed the decree or made the order sought to be reviewed; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under Rule 4, Sub-rule (2), proviso (a), be disposed of by his successor.

Under this rule where a decree is passed by a Judge, other than a High Court Judge, the application for review may be made to him or his successor only when (a) there is a discovery of new and important matter or evidence or (b) some clerical or arithmetical mistake or error apparent on the face of the decree. In all other cases, it must be made to the Judge who made the order himself and to no one else. There is no doubt that in the present case it is not suggested that there was any clerical or arithmetical error either apparent on the face of the order made by Mr. Farrouqui or apparent on the face of the record, and obviously therefore if Order XLVII applied, a review could be entertained by Mr. Farrouqui only. But the Advocate General who appeared on behalf of the respondent and Mr. Vimadalal who appeared for the Corporation have contended that Section 38 of the Act of 1944 provides that Order XLVII of the Civil Procedure Code shall apply 'as far as may be.' They contend that it would be defeating the power of review conferred on the Collector if I were to hold that the successor in office of the Collector could not exercise the power of review except to the extent indicated in Rule 2 of Order XLVII. I am unable to accept this contention. The office of the Collector is occupied by different persons from time to time but so is the office of the Civil Judge in the mofussil. Individuals occupying these respective offices are liable to be transferred not at any fixed period but as their superiors may from time to time direct; and if in the case of Civil Judges the power of review is restricted in the manner indicated by Order XLVII, Rule 2, I see no reason why in the case of the Collector the power of review should not be similarly restricted. I therefore hold that if there was a power of review in this case it could only have been exercised by Mr. Farrouqui and not by his successor in office.

7. That brings me to the last contention on behalf of the petitioner regarding limitation. The petitioner's contention is that there is a period of time prescribed by the Indian Limitation Act for a review. That period is to be found in Article 173 of the Limitation Act. The question is whether Article 173 has any application to a review under Act VII of 1944. The preamble to the Limitation Act states that it applies to Courts. The word 'Court' has not been defined either in the Limitation Act or in the General Clauses Act. I am not prepared to hold that the Limitation Act applies to the proceedings under the Rent Act as the Rent Contoller exercising the powers conferred on him by the Act of 1944 is not a Court. I am strengthened in this conclusion by the fact that the Act of 1944 itself in fact prescribes a period of limitation for appeals to the Collector which is fifteen days under Section 14(1) of the Act. If the Limitation Act was to apply to proceedings under Act VII of 1944, this provision in Section 14(1) would be entirely redundant. It does appear at first sight extremely odd that an order made two years and eight months prior to the date on which the application is entertained should be upset almost three years after the original order was made; but if there is a power of review vested in the Collector and there is no period of limitation which is applicable to the exercise of such power, that result must, I am afraid, follow, whatever hardship it may involve to the parties concerned. But the decision of this petition does not depend on the determination of this issue of limitation. If I am right in the conclusions which I have arrived at on any one of the three other submissions made on behalf of the petitioner, the petitioner is entitled to succeed. I therefore make the rule absolute and direct that the order of the Collector dated January 31, 1947, be set aside.

8. As regards the costs, the petitioner does not press for costs against the respondent who has not taken up a contentious attitude on this rule, but he asks for costs against the corporation who appeared before me and supported the order made by the Collector. They are not parties to this petition; but I had directed that they should be served with notice of this petition as they would be the persons affected by any order that would be made on this petition. Counsel on their behalf has made submissions on pure questions of law. They are a society apparently formed for the promotion of education in Bombay and purchased this property for conducting a school in Bombay. It is natural therefore that they should come to support the order which would enable them to conduct the school in their own premises. I have held that the Collector exceeded his jurisdiction but this is not the fault of the Corporation, and I think that the justice of this particular case will be met by my making no order as to costs of this petition.


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