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The Municipal Corporation for the City of Bombay Vs. Govind Laxman Savant - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 53 of 1948 and Miscellaneous Application No. 204 of 1948
Judge
Reported inAIR1949Bom229; (1949)51BOMLR190
AppellantThe Municipal Corporation for the City of Bombay
RespondentGovind Laxman Savant
DispositionAppeal allowed
Excerpt:
specific relief act (i of 1877), sections 45, 46-'property, franchise or personal right,' what is-writ of mandamus-cause of action in suit and in proceeding under section 45-representative suit-personal right-quantum of interest-'person injured' same as 'person aggrieved' in english law-whether rate-payer can be 'person injured'-'demand of justice and the denial thereof-'other specific and adequate legal remedy'-city of bombay municipal act (bam. ill of 1888), section 70(b)-contract with municipality-fixation of price-price may be left to be determined with reference to certain eventualities-bombay municipality-vaitarna scheme-contract to carry out construction of pipe line-rate-payer-petition to stay execution of contract.;under section 45 of the specific relief act 1877, in order to.....m.c. chagla, c.j.1. the municipality of bombay decided to improve and increase the water supply of the city of bombay and with that view it decided to launch what is popularly known as the vaitarna-cum-tansa project. that project involved the building of a new pipe line 96' from tansa. in order to carry out the work the municipal commissioner invited tenders on march 18, 1948, and in response to this invitation three contractors submitted tenders and these tenders were nos. 7, 8 and 9 which dealt with different portions of the pipe line. the first contractor that submitted the tender was rawji sojpal who submitted all the three tenders nos. 7, 8 and 9, and the total amount was rs. 72,94,055. the hindustan construction co., ltd., also submitted all the three tenders and the total amount of.....
Judgment:

M.C. Chagla, C.J.

1. The Municipality of Bombay decided to improve and increase the water supply of the City of Bombay and with that view it decided to launch what is popularly known as the Vaitarna-cum-Tansa Project. That project involved the building of a new pipe line 96' from Tansa. In order to carry out the work the Municipal Commissioner invited tenders on March 18, 1948, and in response to this invitation three contractors submitted tenders and these tenders were Nos. 7, 8 and 9 which dealt with different portions of the pipe line. The first contractor that submitted the tender was Rawji Sojpal who submitted all the three tenders Nos. 7, 8 and 9, and the total amount was Rs. 72,94,055. The Hindustan Construction Co., Ltd., also submitted all the three tenders and the total amount of their tenders was Rs. 72,29,394. Messrs. S.B. Joshi & Co. submitted only one tender, No. 7, and their tender was for Rs. 28,89,952. With regard to the Hindustan Construction Co., Ltd., they sent a letter along with their tender and they stipulated that the whole of that letter was to be considered as part of the tender, and in that letter they pointed out that although the Municipality required the work to be done within a period of 720 days, they were prepared to finish the work in 600 working days. They also made it a condition of the contract that the rates quoted by them should be suitably adjusted if the price of materials, fuel, oils, sales-tax and labour costs altered, inasmuch as the tender they had submitted was on the basis of prevailing rates. They also required that the cost of cutting trees and also of de-watering of foundations of culverts and cross-drainage works should be paid for. Ultimately it was agreed that the price for cutting trees and de-watering should be fixed at Its. 30,000, and, therefore, this sum of Its. 30,000 was added to the amount mentioned in the tender of the Hindustan Construction. Co., Ltd. On May 29, 1948, the Commissioner made his report to the Standing Committee and in that report he recommended that the tender of the Hindustan Construction Co., Ltd., should be accepted. The Standing Committee accepted that recommendation on June 16, 1948, and authorised the Commissioner to execute a contract with the Hindustan Construction Co., Ltd. As the amount sanctioned was to be spent not only during the current financial year, but had to be spread over beyond the financial year, under the Municipal Act the sanction of the Municipal Corporation was required and that sanction was obtained on June 21, 1948. On July 29, 1948, the petitioner and the respondent before us addressed a letter to the Municipal Commissioner and he addressed a similar letter to the Mayor and the members of the Corporation on July 80, 1948, complaining against the tender submitted by Hindustan Construction Co., Ltd., and alleging that the tender was illegal and that the Municipality had no authority to enter into a contract with the Hindustan Construction Co., Ltd., in terms of the tender and asking both the Commissioner and the Municipality to desist from entering into the contract. On August 2 the petitioner filed a petition in this Court under Section 45 of the Specific Relief Act, 1877, praying that the Municipal Commissioner and the Corporation be ordered to forbear from concluding and executing the contract with Hindustan Construction Co., Ltd., and also that they be ordered to invite fresh and proper tenders. The petition came on before Mr. Justice Bhagwati, and Mr. Justice Bhagwati made the order prayed for. From that order of the learned Judge the Municipal Corporation and the Municipal Commissioner have come in appeal before us.

2. The first question that has been argued before us by Sir Jamshedji Kanga is that the petition filed by the respondent is not maintainable inasmuch as the conditions laid down in Section 45 of the Specific Relief Act for the maintainability of the petition have not been satisfied. In the first place it is contended that the petitioner is not a person whose property, franchise or personal right would be injured by the doing of the act which the. Municipality and the Municipal Commissioner threaten to do. It is not disputed that the respondent is a rate-payer and pays municipal taxes. Section 111 defines how the municipal fund is constituted, and among the many items that go to build up that fund one important item is moneys raised by any tax, levied for the purposes of the Municipal Act. That section also provides that all moneys credited to that fund shall be held by the Corporation in trust for the purposes of the Act, subject to the provisions contained in that statute, and Section 118 of the Act defines the various purposes to which the municipal fund can be applied, and briefly those purposes are the carrying out of the objects of the Municipal Act. Now, the respondent is undoubtedly interested in the application of the municipal fund both as a rate-payer who has actually contributed to that fund and also as a beneficiary who is entitled to the various benefits which accrue to the citizens of Bombay by the application of that fund. The contention of Sir Jamshedji is that before the jurisdiction under Section 45 can be invoked the petitioner must show that he has a legal specific right, a right which is special to himself and which is not shared by him with the community at large. The argument briefly put, on which Sir Jamshedji has strongly relied, is that in this case every rate-payer in the City of Bombay is interested in the proper application of the municipal fund. There is no interest which is special to the petitioner and, therefore, he cannot maintain the petition. It is also suggested that a mere public wrong is not sufficient to entitle a person to maintain a petition under Section 45. He must further show that some private wrong has been caused to him and he has been damnified by that wrong. It is further contended that there is a vital distinction between a legal right which would furnish a cause of action to a party for the filing of a suit and a legal right which would entitle that party to maintain a petition under Section 45 of the Specific Relief Act. Now, apart from authorities with which I shall presently deal, it would seem clear that under Section 45 of the Specific Relief Act in order to satisfy the first proviso a party must have some interest in property, franchise or personal right, the injury to which alone would entitle him to maintain a petition under that section. It is difficult to see why under that section a particular quantum of right should be necessary in order to entitle that person to come under that section. It is also difficult to see why there should be any difference in principle between the title which would entitle a person to sue for redress for an injury done to his property, and the title which would be equally necessary to make a petition under Section 45 maintainable. It is perfectly true that the law ordinarily discourages a large body of persons who have a common interest from litigating with regard to their interest in separate suits. The policy of the law is that in such cases a representative suit should be brought in which the interest of all should be finally and completely adjudicated upon. But to this ordinary rule there are certain exceptions, and the most important exception is that when you have m embers of a corporation who are all equally interested in the corporation carrying out its activities according to its charter, if the corporation acts illegally or contrary to its charter or misapplies its funds, then every member of the corporation has the right to file a suit to prevent the corporation from so acting. The same principle applies to a rate-payer. Every rate-payer has the right to prevent the public body to which he pays the rates from acting contrary to law or contrary to its own charter. In these cases the law assumes that the member of the corporation or the rate-payer has a specific legal interest which entitles him to come to Court in support of his right and in order to prevent the corporation or the public body from acting contrary to law or their own charter. There seems to be no reason in principle why the member of the corporation or the rate-payer should only come to Court by way of a suit, and why he should be, debarred from invoking the jurisdiction of the Court under Section 45. Whether a relief would be granted to him under Section 45 or not is another matter; because it is clear that Section 45 deals with a procedure which in England corresponds to issuing of a high prerogative writ, and it is now well established that the principles of English law dealing with the writ of mandamus must be imported in considering the provisions of Section 45. Section 45 is a summary procedure and the order to be made is entirely discretionary with the Court, and before the Court would exercise the discretion, the various conditions laid down in Section 45 which are all cumulative must be satisfied. Therefore it may be that whereas in a particular case a petitioner may fail to get an order under Section 45, and yet he may succeed in invoking the aid of the Court in a suit filed by him. But that does not mean that the cause of action is any different in a suit or under Section 45. The title which the petitioner or the plaintiff has to establish, the interest which he has got to prove is identical in both cases. He must show that there is an invasion to his property, franchise or personal right, and there can only be an invasion provided he has a legal specific right in property or in franchise or he has some personal right.

3. Sir Jamshedji Kanga has relied on a decision of the Privy Council in Bank of Bombay v. Suleman Somji (1908) L.R. 35 IndAp 130 for the proposition that the plaintiff must show some right which be enjoys other than the rights enjoyed by the community at large before he can maintain a petition under Section 45. Turning to that decision we do not think that it lays down the proposition for which Sir Jamshedji contends. In that case (which went from Bombay) a shareholder of the Bank of Bombay sued the Bank for a declaration of his right to inspect and take extracts from the Register of Shareholders alleging that there were various irregularities in the management of the Bank and that he wanted to communicate with the other shareholders with a view to the improvement of the management of the Bank. Mr. Justice Scott dismissed the plaintiff's suit. The Court of Appeal reversed that decision and gave him the declaration he sought. From that decision of the Court of Appeal here the Bank of Bombay preferred an appeal to the Privy Council and the Privy Council took the view that the shareholder's suit must fail. In the first place the Privy Council pointed out that under the Presidency Banks Act of 1876 a shareholder had no right to the inspection of the Register of Shareholders comparable with the right conferred under the Indian Companies Act, and, therefore, in the opinion of their Lordships the only right which the shareholder had against the Bank was the right which at common law belonged to every member of the corporation, and that right was a limited right of inspection provided it was shown that such inspection was requisite with reference either to an action already instituted or at least to some specific dispute or question depending in which the applicant was interested. But even in such a case inspection would be granted only to such an extent as might be necessary for the particular occasion. Now, it should be borne in mind that the shareholder was claiming a general and unqualified right of inspection and the Privy Council rejected that right as not founded either on common law or any statute law. Their Lordships point out at p. 137 that every member of the Bank had an interest in the discovery, but none of them had any special interest different from that of his fellow-members, nor had they any definite purpose or object in obtaining the inspection asked for, and inasmuch as he had no special interest, the Privy Council came to the conclusion that he was not entitled to ask for discovery of the register from the Bank. Sir Jamshedji emphasises the passage in the judgment of the Privy Council which says that the plaintiff must fail because he had no special interest which would entitle him to succeed. This passage must be read in its own context, and the special interest to which the Privy Council is referring is the special interest which under common law would entitle a shareholder of a corporation to claim, discovery. It is not as if the Privy Council were saying that the shareholder had an interest, but as the interest was shared along with the other members of the Bank and he did not show anything further, his suit was liable to fail. The Privy Council negatived any right whatever in the plaintiff to claim discovery under the circumstances of that case. It was. not as if the plaintiff had some interest and the Privy Council were considering the quantum of that interest. The plaintiff lacked any title at all or any interest at all which would entitle him to the discovery which he claimed. The Privy Council also conceded that the plaintiff had a limited and qualified right of inspection of the register, but that claim was never put forward at the trial, nor was such a. claim ever refused by the Bank. At p. 135 the Privy Council deals with the nature of the writ of mandamus, and they say that this particular suit was in the nature of an application for a writ of mandamus, and one of the principles they emphasise is that the writ will not be allowed to issue unless the applicant shows clearly that he has a specific legal right to enforce which he asks for the interference of the Court. The Privy Council do not say that the applicant must have any special legal right; it must be a specific legal right, and, as I have already indicated, after considering the facts of that particular case they came to the conclusion that the plaintiff in that case had no specific legal right whatever to the inspection which he claimed in the suit. The decision of the Privy Council incidentally also makes it clear that there is no difference in principle between the quantum of right which will support an action and the quantum of right which will support an application under Section 45. If Sir Jamshedji's contention was right, although a writ of mandamus could not be issued still a suit would lie because the right claimed by the applicant was not sufficiently wide. But the Privy Council were dealing with a suit and they dismissed the suit and they pointed out that on the same facts a writ of mandamus also could not be issued.

4. Reliance has also been placed on the decision in The Queen v. Lewisham Union. [1897] 1 Q.B. 498 In that case a metropolitan district board of works applied for a mandamus to the guardians of the poor of the district, commanding them to enforce the provisions of the Vaccination Acts generally in their district, and particularly in certain specified instances. The Court of Appeal in England held that the Board of Works had no legal specific right to enforce the performance by the guardians of their duties under the Vaccination Acts, and refused the writ of mandamus. And what is relied on in this case is that the Court of Appeal emphasised the fact that the applicant must show that he had a legal specific right to ask for the interference of the Court before a writ of mandamus would be issued.

5. Strong reliance is placed on the judgment of the Calcutta High Court in J.M. Sen Gupta v. H.E.A. Cotton. I.L.R. (1824) Cal. 874 In that ease Mr. Sen Gupta, a member of the Bengal Legislative Council, moved the Calcutta High Court for an order under Section 45 of the Specific Relief Act for directing Mr. Cotton, President of the Council, to decide on the admissibility of a certain motion and to disallow the said motion. The motion related to a grant for the salaries of ministers and according to Mr. Sen Gupta it would be illegal for the Legislature to grant that amount to the ministers, and the question that was raised before Mr. Justice Ghose was whether Mr. Sen Gupta could maintain the petition. Mr. Justice Ghose proceeded on the assumption that the applicant paid Government revenue and that the money paid by him constituted a part of the fund out of which the salaries of ministers were to be met. According to Mr. Justice Ghose the applicant paid Government revenue along with thousands of other people and, therefore, that fact by itself did not entitle Mr. Sen Gupta to maintain the petition. The learned Judge earlier in his judgment lays down the prineiplc of law as being that the person applying for a writ of mandamus must show that he has a real and special interest in the subject matter under specific legal right to enforce. Therefore the interest must not be merely real, not only specific, but it must be special to the applicant, and in support of this proposition the learned Judge relies on the case to which I have just referred, viz. The Queen v. Lewisham Union. Now, with very great respect to the learned Judge, he has used the expression 'special' which does not occur in that case. That case merely speaks of a specific interest, which is very different from a special interest. The learned Judge also found that Mr. Sen Gupta had suffered some injury, but according to him that injury was not sufficient to entitle him to maintain a petition under Section 45. Therefore, according to that learned Judge, a certain quantum of injury was essential before a petition under Section 45 could be maintained. With very great respect, we see no warrant for holding that a special injury has got to be established by the petitioner before he can come under Section 45 of the Specific Relief Act. If he shows any injury and he also shows a title to his property which is likely to be injured, that is sufficient to satisfy the first proviso to Section 45 of the Specific Relief Act. Having rejected Mr. Sen Gupta's petition under Section 45, the same learned Judge dealt with a suit filed by the same Mr. Sen Gupta for the same reliefs and the judgment of the learned Judge in that suit is reported in Shankar Roy v. H.E.A. Cotton : AIR1925Cal373 The suit that Mr. Sen Gupta had filed was a representative suit on behalf of himself and the other rate-payers, and Mr. Justice Ghose is at pains to point out that although Mr. Sen Gupta individually had not that interest which would entitle him to maintain a petition under Section 45, there was sufficient interest in Mr. Sen Gupta and the other plaintiffs in their representative capacity to sustain them-I am using his language-to maintain that suit. Therefore, according to Mr. Justice Ghose a rate-payer cannot individually complain if the fund in which he is interested is being misapplied. But he could complain if that complaint is on behalf of himself and the other rate-payers and is preferred in a representative capacity. Now, as I have pointed out earlier, again with respect to the learned Judge, this is an erroneous proposition of law and is contrary to a clear and carefully considered decision of our own Court of Appeal which is reported in Vaman v. Municipality of Sholapur. I.L.R. (1897) 22 Bom. 646 Curiously enough Mr. Justice Ghose cites that judgment in support of his proposition. But he incorrectly assumes that in Vaman v. Municipality of Sholapur the suit was filed by the rate-payers in their representative capacity. The same error has crept into Sir Dinshah Mulla's well known commentary on the Civil Procedure Code, because at p. 506 Sir Dinshah Mulla cites this case as an instance of a representative suit under Order I, Rule 8, which a tax-payer may bring against a Municipality on behalf of himself and the other tax-payers to restrain the Municipality from misapplying its funds. Looking to the facts of the case as reported in Vaman v. Municipality of Sholapur and also the judgment itself it is perfectly patent that the suit was not filed by the rate-payers in their representative capacity, but was filed individually by them. Three rate-payers challenged the right of the Municipality of Sholapur to purchase a band out of the municipal funds, and the District Judge in terms differing from the Subordinate Judge who tried the suit dismissed the plaintiffs' suit on the ground that they were not entitled to sue in their individual capacity without proof of special damage. The matter came in second appeal before Mr. Justice Parsons and Mr. Justice Tyabji, and at p. 648 Mr. Justice Tyabji refers to the well established rule that any individual member of a corporation may file a suit for the purpose of restraining the corporation from doing any act which may be illegal or ultra vires of the corporation, and the learned Judge says that he sees no distinction in principle between the case of a shareholder and the case of a rate-payer, one suing the corporation and the other suing a public body for the misapplication of funds, and he points out that in the case both of the member of the corporation and of the rate-payer although his interest may be small, it was not less real. After reviewing English and Indian authorities at p. 651 Mr. Justice Tyabji sums up the position in law thus :

These authorities seem to me to show very clearly, first that the plaintiffs can sue in their individual capacity it' they are sufficiently interested in the municipal fund, and secondly, that any interest however small is sufficient to entitle them to do so.

Then Mr. Justice Tyabji emphasises the fact that the plaintiffs were rate-payers and not mere strangers and they were directly interested in the proper application of the municipal funds, and he draws a distinction between rate-payers and the mere inhabitants of Sholapur and he says that absence of interest might have been with some justification alleged against mere inhabitants in contradistinction to rate-payers. Mr. Justice Parsons in a concurring judgment clearly points out that if the plaintiff has any interest, then the actual amount of personal interest must be disregarded, and it was sufficient if there was any personal interest at all; and such a personal interest must be held to exist in the case of every individual tax-payer since he was liable to contribute to the fund and could not but be interested in its proper application, and Mr. Justice Parsons refers to Sections 17 and 18 of the District Municipal Act of 1873 which are identical with Sections III and 118 of the Bombay Municipal Act. Therefore, in our opinion this case clearly lays down the proposition that every rate-payer has an interest in the proper application of the municipal fund to which he contributes by paying rates. It is unnecessary to consider the quantum of his interest, because the mere payment of rate is sufficient to qualify him to challenge the illegal and ultra vires act of a public authority.

6. Sir Jamshedji has relied further on the judgment of a single Judge sitting on the Original Side, Mr. Justice B.J. Wadia, which is reported in Shankarlal v. Municipal Commissioner of Bombay : AIR1939Bom431 In that case a municipal voter challenged the validity of the electoral rolls prepared by the Municipality on the ground that whereas the Municipal Act required that the names of the voters should be arranged alphabetically, the Municipality had prepared the roll community wise. Mr. Justice Wadia in terms held that the applicant who came to Court under Section 45 of the Specific Relief Act to restrain the Municipality had suffered no injury, that he was in no way prevented from voting and that the particular method of keeping the roll had in no way interfered with any right of the applicant. We should have thought that that was sufficient to dispose of the case; but Mr. Justice Wadia went on to observe that the applicant must show, in order to succeed under Section 45, that he had some special definite individual right of his own in the matter complained of irrespective of his right as a member of the community at large. With respect, it will be noticed that the qualifications are increasing. We have 'specific' in the English case (The Queen v. Lewisham Union [1897] 1 Q.B. 498 we have 'special' in the Calcutta case (J, M. Sen Gupta v. H.E.A. Cotton I.L.R. (1924) Cal. 874 and now we have 'individual right' of the applicant. It is really difficult to understand why if a person has a right, that right loses its validity or becomes of. less importance because it is shared with the community at large or with a large number of persons. It is clear that this statement of Mr. Justice Wadia is purely obiter, and as it is, the decision in Vaman v. Municipality of Sholapur I.L.R. (1897) 22 Bom. 646 was not cited before that learned Judge.

7. The other case that was cited at the bar is a decision of the Madras High Court in In the matter of G.A. Natesan and K.B. Ramanathan. I.L.R. (1916) 40 Mad. 125 In that case Mr. Natesan and Mr. Ramanathan who were members of the Senate of the Madras University-protested against a certain resolution of the Senate, and they required the Syndicate to forward their protest to the Chancellor. The Syndicate having refused to do so, they filed a petition under Section 45 for compelling the Syndicate to carry out their requisition. In this case undoubtedly Mr. Natesan and his fellow-member of the Senate had a special interest in the forwarding of the protest which they themselves had lodged. But even so, the Advocate General on the strength of the decision in The Queen v. Lewisham Union [1897] 1 Q.B. 498 attempted to argue that every member of the Senate was interested along with the petitioners in seeing that the university-regulations were carried out and, therefore, the petitioners did not have a special interest which would justify the taking out of a petition under Section 45. That contention was rejected as being wholly fallacious by Mr. Justice Coutts Trotter. He points out that a right may be enjoyed in common with every subject of the Crown, but when it is infringed in the case of an individual subject, there at once arises in that individual a further right to seek the protection of the Court to enforce such right. Therefore, the question in every case must be whether a right has been infringed quae the petitioner. The mere fact that the petitioner shares the right with other persons cannot debar him from obtaining the necessary relief under the law. And he further points out that the mere fact that the Senate as a whole might have been interested in the maintenance of the rights of one of its members did not preclude Mr, Natesan from litigating his specific right to have his protest forwarded to its proper destination.

8. Reliance was also placed by Sir Jamshedji on a passage in the judgment of Mr. Justice Chaudhuri in, Abdul Basul, In Rs. I.L.R. (1914) Cal. 518 The passage is at page 529. 'The rule, on the other hand, appears to be that he alone is a competent relator who has some interest other than such as may belong to the community at large in the question to be tried.' Now, when one looks to the facts of that case, with respect to the learned Judge this particular observation was not at all necessary for the decision of the case. A lecturer of the Calcutta University applied for a writ of mandamus against the University in order that he should be appointed as a lecturer to that University, and what Mr. Justice Chaudhuri held was that as the lecturer had not established his title to be a lecturer, a writ of mandamus would not lie, and it was further pointed out that there must really be a pre-existing title in the person applying under Section 45 of the Specific Relief Act in order that he could maintain such an application. Then we come to an Irish case, The Queen v. Drury [1894] L.R. 2 Ir. 489 which has considerable bearing on the question that we have to decide in this appeal. By 34 & 85 Vic. c. 109, Section 11, the accounts of municipal bodies in Ireland were directed to be audited yearly by the auditor of accounts relating to the relief of the poor in the locality; and, by Section 12, any person aggrieved by the allowance, disallowance, or surcharge of any sum by such auditor could apply to the Queen's Bench for a writ of certiorari, and the Court, if it appeared that the auditor's decision was erroneous, could order the payment of such sum improperly allowed, disallowed or surcharged to the party entitled thereto by the party who ought to repay the same. A rate-payer applied for a writ of certiorari to remove and quash certain allowances made by the auditor and also for a writ of mandamus to compel' him to enforce the disallowances by recovering the amount of the same against whom they had been or should have been certified to be due, and the Irish Court considered whether the rate-payer could maintain this application and whether he was a person aggrieved within the meaning of Section 12 of the English Statute. In the first place, Sir Jamshedji has attempted to distinguish this case by pointing out that what the Court there was doing was merely to construe the expression 'aggrieved.' Now, even under Section 45 of the Specific Relief Act a person has to be aggrieved before he can maintain a petition. He is to be aggrieved either in respect of his property or in respect of his franchise or with regard to his personal right. In the second place, Sir Jamshedji has contended that this decision only applies to writs of certiorari. But that is not so because the application was both for a writ of certiorari and a writ of mandamus, and the Chief Justice Sri Peter O'Brien began his judgment by pointing out that they had reserved their judgment because it involved important considerations as to the principles upon which the Court should act in granting wrifs of certiorari and mandamus. The Chief Justice points out in his judgment that a rate-payer is clearly aggrieved if his money is applied to an unauthorised purpose, which is a typical instance of being aggrieved. The wrong application of money which comes from the ratepayer's own pocket is a very acute grievance. Then he draws a distinction between a rate-payer and a member of the general public and he asks himself the question : 'Is it to be said-can it be contended with the semblance of foundation-that there is any analogy between a person like Mr. Bridgeman, whose money is misapplied, and a person who comes forward as a mere member of the general public having no particular interest in the matter? He then negatives the argument that the fact that the rate-payer's grievance is shared with other rate-payers makes any difference to the position in law. This is what he says (p. 502):

He is specially, peculiarly, aggrieved by having his money misapplied, and he is not the less so because he shares his grievance with a certain class of rate-payers. It cannot, with any show of reason, be said that he or they are in the position of the general public. The general public are not aggrieved at all. It is the man, and every one of the men, whose interests were directly prejudiced that were aggrieved.

And Mr. Justice Johnson observes (p. 519):

It may, I think, be taken in general that a person is aggrieved when his legal rights are directly affected by the decision of which he complains, or when he has legal ground for saying that he is ' aggrieved'; and a ratepayer whose pocket is directly affected by a decision allowing the misappropriation of a rate which he is compelled to pay, or its application to purposes which are unauthorised or illegal, is a person whose legal rights are directly affected by such a decision and has legal ground for saying that he is aggrieved by it.

And he further adds :

And it makes no difference whether he is so particularly aggrieved individually, or is one of a class so particularly aggrieved.

There seems to be no difference in principle between a person aggrieved within the meaning of the English statute and a person injured within the meaning of Section 45 of the Specific Relief Act.

9. Therefore, on a review of these authorities it seems clear to us that a rate-payer who has contributed to the rates is injured in his property within the meaning of Section 45 if the rates are misapplied or utilised contrary to the provisions of the law.

10. The second contention urged by Sir Jamshedji on the maintainability of the petition is that the petitioner has failed to establish that there was a denial by the respondents of the demand of justice as required by Section 46 of the Specific Relief Act. Sir Jamshedji says that the two letters addressed by the petitioner to the Commissioner and members of the Corporation, respectively dated July 29, 1948, and July 30, 1948, were received on the 30th which was a Friday and the petition was filed on August 2 which was a Monday, and according to Sir Jamshedji the respondents were not given sufficient time to consider the requisition of the petitioner and to answer those requisitions. Now, in the affidavit made by the petitioner in support of his petition he does say that an assistant of his solicitors Sankershet & Vaidya personally requested the Commissioner and the Municipal Corporation to give him an assurance to carry out the requirements of the two letters, but they' did not do so. It is difficult to understand how an assistant of a solicitor, however ingenious a person he may be, could possibly personally interview the whole of the Municipal Corporation at one and the same time. The Advocate General has pointed out that there is no specific denial of this averment in the affidavit in reply. Even assuming that the Municipal Commissioner did not give the necessary assurance, it is impossible to hold that any opportunity was given to the Municipal Corporation to consider the requisition made by the petitioner. If our view was not against the petitioner on the merits, we should have found it difficult to hold that the requirements of Section 46 were satisfied in this case. After all, an order under Section 45 is in the nature of a high prerogative writ and all the conditions laid down by the statute must be strictly complied with. With very great respect to the learned Judge, we do not agree with his observation that in view of the subsequent attitude taken up by the Municipal Commissioner and the Municipal Corporation it was legitimate to presume that the Commissioner and the Corporation would and in fact did deny the demand of justice of the petitioner. Such a presumption cannot be drawn ex post facto even though the respondents may ultimately resist any application made by the petitioner under Section 45 of the Specific Relief Act. Section 46 requires that there should first be a demand for justice and a specific denial of that justice by the respondent.

11. It is next submitted that under Clause (d) of Section 45 the petitioner had another specific and adequate legal remedy and therefore no order should have been made under Section 45 of the Specific Relief Act. Now, the other specific and adequate legal remedy suggested is the filing of a suit. Undoubtedly, the petitioner could have filed a suit for a declaration that the contract to be entered into by the Municipal Corporation was illegal and for an injunction restraining the Municipality from entering into any such contract. But it is to be remembered that before the petitioner could have filed a suit he would have had to give a notice of one month under Section 521 of the Bombay Municipal Act and therefore he could not have got any such injunction till the period of one month had elapsed. Sir Jamshedji says that no prejudice could have been caused to the petitioner because it was not likely that the work could have started within such a short time. But, on the other hand, 'we must bear in mind that if no injunction had been obtained, in all probability the Commissioner would have executed the contract on behalf of the Municipality, certain rights would have come into existence, and the position of the petitioner might have been prejudiced. Therefore we cannot say that the filing of the suit was as efficacious a remedy as an application under Section 45. We are, therefore, of the opinion that the petitioner has established that there was no other specific and adequate legal remedy to which he could have resorted for enforcing his rights.

12. Now coming to the merits of the petition, what is urged by the petitioner is that the contract which the Minicipality intended to enter into with the Hindustan Construction Co., Ltd., pursuant to the tender submitted by it was contrary to the provisions of the Bombay Municipal Act. In order to appreciate this contention it is necessary to look at the material provisions of the Bombay Municipal Act. Under Section 69 every contract on behalf of the Corporation is to be made by the Commissioner and every contract which involved an expenditure exceeding five thousand rupees can only be made by the Commissioner provided the approval of the Standing Committee has been previously obtained thereto, and Section 70(6) provides that every contract for the execution of any work or the supply of any materials or goods which involves an expenditure exceeding five hundred rupees shall be in writing and shall be sealed with the common seal of the Corporation and shall specify the work to be done or the materials or goods to be supplied, as the case may be, the price to be paid for such work, materials or goods, and, in the case of a contract for work, the time or times within which the same or specified portions thereof shall be completed. Under Section 72(2) it is incumbent upon the Commissioner in the case of every contract which involves an expenditure exceeding three thousand rupees to invite tenders for the same, and Section 72(2) provides that the Commissioner is not bound to accept any tender but may accept only such tender which appears to him, upon a view of all the circumstances, to be the most advantageous, and Section 72(5) gives the power to the standing committee to authorise the Commissioner, for reasons which shall be recorded in the proceedings, to enter into a contract without inviting tenders. Now in Clause 7 of the general directions to the tenderers which were issued by the Municipal Commissioner, it was provided that no variation in the rates once quoted will be allowed on whatever grounds after the tenders were opened on the due date, and as we have pointed out earlier, in the tender submitted by the Hindustan Construction Co,, Ltd., they made a term of their tender which was contained in the letter of April 21, 1948, that their tender was based on the rates of materials, fuel oils, sales-tax, and labour costs, etc. prevailing at the date of the tender and any variation should be suitably adjusted. In the report of the Commissioner to the Standing Committee dated May 20, 1948, attention was drawn of the committee to this term in the tender of the Hindustan Construction Co., Ltd., and the Standing Committee sanctioned the tender of the Hindustan Construction Co., Ltd., with the condition that the final decision with regard to any variation in the rates as per condition No. 7 of the conditions stipulated by the contractors shall lie with the Commissioner. Therefore, in effect it was left to the Commissioner to vary the rates taking into consideration any fluctuations in the price of materials, fuel oils, sales-tax and labour costs. The Advocate General contends that such a provision in the contract to be entered into with the Hindustan Construction Co., Ltd., is contrary to Section 70(6) of the Bombay Municipal Act. The argument advanced is that in view of this provision the price which the Municipality will have to pay to the contractors is not specified and it is left to be determined at a future date by the Commissioner dependent upon various considerations which may come into existence. The Advocate General's contention is that the whole object of Section 70(b) is to let a public authority like the Municipality know what its commitments would be in case it sanctions a contract and what amount would have to be paid out of its funds. The law, according to him, does not permit the Bombay Municipality to sanction a contract where it is not in a position to know what its ultimate and final liability would be. The Advocate General is quite right that although in his report the Municipal Commissioner estimated the total costs of the works, if the contract was given to the Hindustan Construction Co., Ltd., at roughly Rs. 76 lakhs, this figure would certainly be subject to modification dependent upon rise in the cost of materials, labour, etc. On the other hand it is pointed out by Sir Jamshedji Kanga that it would be impossible for the Bombay Municipality to get any contractor to carry out works required to be done for the Municipality if the price was fixed without any consideration as to any fluctuations that may take place in the future. It would be all right when the work was of a minor nature and could be carried out within a short time, but if the work was of a very extensive character and would take a considerably long time to carry out, as in this case, no contractor would be willing to take the risk of any serious fluctuations that may take place in the cost of materials and labour. We are really not concerned with the practical difficulties that may result in our giving a particular interpretation to Section 70(6) of the statute, although it must always be borne in mind that a Court does not construe a particular section in a statute in such a way as would result in anomalies or insuperable difficulties unless the plain language of the section drives the Court to such a conclusion. Now all that Section 70(6) requires is that the price has got to be specified in the contract, and specifying the price only means that it should be explicitly mentioned, or, in other words, perusing the contract it should be clear as to what is the price which the Municipality has to pay to the contractors for carrying out the contract. The statute does not say that the contract must state a fixed price or a price aseertainable in rupees, annas and pies at the date when the contract is entered into. Nor is there any prohibition in the statute which precludes the Municipality from fixing a price which may be ascertained at a future date or may be ascertained by some person specially nominated under the contract by the parties. Under Section 9 of the Sale of Goods Act, the price in a contract of sale may be fixed by the contract or may be left to be fixed in the manner thereby agreed. Therefore, although a fixed amount may not appear in a contract, nevertheless the price may be specified which would be fixed in the manner agreed to by the parties under the contract itself. In this case a certain price is fixed, but the parties agreed that that price is subject to certain variations to be determined by the Commissioner under certain eventualities. That is as much a price as a fixed price in terms of rupees, annas and pies. Therefore, in our opinion, it is not correct to say that the price in this contract which the Municipality wants to enter into is not specified, nor is it correct to say that the Municipality is compelled by the statute in every contract to provide for a fixed amount calculable in rupees annas and pies as the price under the contract. If the Advocate General's argument was to be accepted, it will result in the most curious results. If the expression 'specify' is to be construed as 'to fix,' then not only the price would have to be fixed, but the work to be done or the materials or goods to be supplied would also have to be fixed in the contract without any possibility of variation and the time within which the work would have to be carried out would also have to be fixed without any scope for any adjustment. Now in this very tender itself the quantities required to be mentioned are all approximate estimated quantities. They may be less or they may be more, and the contract to be entered into would also be on the basis of these approximate estimated quantities. Therefore, if the Advocate General was right, it would not be open to the Municipality to enter into such a contract. They must specify (and according to him that means 'fix') the actual quantities which the contractor would have to work out. It is hardly necessary to say how impossible such a situation would be. Apart from that, in the form of the tender itself there are various provisions for modifications and variations dependent upon certain contingencies. Under Clause 35 the cost of the municipal establishment for supervision is to be varied under certain circumstances. Under Clause 37 the rate for the supply of articles and materials imported is m are dependent upon the rate of exchange. Under Clause 38 the rates of customs duties are taken into consideration. And under Clause 47 the rates for extra work are laid down, and when this item for extra work does not exceed Rs. 2,000, the rate is to be fixed by the Engineer, and if it exceeds Rs. 2,000, then it is fixed by the Engineer subject to the approval of the Commissioner, and it is provided that no extra work shall be taken without the previous written order of the Engineer. Therefore, Clause 47 leaves ample scope to the Engineer and to the Municipal Commissioner to ask the contractor to carry out extra work, the cost of which is not known and for which the Municipality would be ultimately liable. Therefore, clearly, if the price is to be fixed in the manner suggested by the Advocate General, Clause 47 would be contrary to the provisions of Section 70(6) of the Act. In England there is a statute from which we ourselves have borrowed Section 70(b) of the Municipal Act and that is Section 174 of the Public Health Act, 1875. There are various decisions in England on this section. At p. 430 of Lumley's Public Health, Tenth Edition, a case is referred to which dealt with a contract to do work for local authority which stipulated that payment for work done should only be made on the production of a certificate from the Engineer appointed under the contract, who was to fix the price of extra work done under the contract but not included in the specification. The particular Engineer whose name was mentioned died and a member of his firm was appointed to carry out his duties under the contract. The contractor contended that the Engineer who was appointed had no jurisdiction to fix the price of extra work. His contention was negatived by the Court. But be it noted that it was never suggested that the local authority had no power to leave it to the Engineer to fix the price of all extra work done under the contract. Again we find in Hudson on Building Contracts, Fifth Edition, p. 171, the statement that where an urban authority enters into a contract under seal, pursuant to Sections 173 and 174 of the Public Health Act, 1875, with a contractor to execute works, and the contract contains the usual power for the engineer to vary, alter, enlarge, or diminish the work to be done, all variations and alterations coming within the powers given by the contract can be validly made without being ordered under the authority's seal. Therefore, in our opinion, the contention of the petitioner is not well founded and the price is specified as required by Section 70(6) of the Municipal Act in the contract intended to be entered into by the Municipality.

13. The next contention urged by the petitioner is that in sanctioning the contract the Standing Committee and the Municipal Corporation acted arbitrarily and, therefore, there was no proper sanction of the contract as required by the statute. When we turn to the petition, we do not find the necessary and proper averment on this point. All that is stated is in para. 17 of the petition that the Standing Committee on the recommendation of respondent No. 2 without fully applying their mind and without calling for requisite details and information and departmental estimates and without taking expert advice and in negligence of their duties resolved to accept the tenders of Messrs. Hindustan Construction Co., Ltd., and there is a similar averment in para. 18 with regard to the Municipal Corporation. But the learned Judge has read this averment to mean that the act of the Standing Committee and the Municipal Corporation was challenged on the ground of its being an arbitrary or capricious act, and he has come to the conclusion that the petitioner's accusations were justified. Now, the whole suggestion underlying this particular point is-and there is no getting away from it-that the Municipal Commissioner showed a deliberate partiality to the Hindustan Construction Co., Ltd., that he refused to take into consideration the tender of Messrs. Raoji Sojpal & Sons which was more advantageous to the Corporation, that he did not point out to the Standing Committee and the Corporation the various important features in Messrs. Raoji Sojpal & Sons' tender and practically led the Standing Committee and the Corporation to accept the tender of the Hindustan Construction Co., Ltd. Now, this is a very serious charge against a very high public officer in the city of Bombay. We fully realise how necessary purity of public administration is, especially in our newly born State, and we all realise that when a Court or a Judge comes across any case where it finds that a public officer has departed or deviated from the path of rectitude, the Court or the Judge should in no uncertain terms condemn such action on the part of the public officer. But we think it equally of importance and essential that when a public officer is conscientiously doing his duty, the Court should not permit any suggestions to be made with regard to his impartiality and integrity. There is nothing easier for a party than to fling mud at persons who very often find it very difficult to defend their conduct, and it is the duty of the Court to protect public officers from such mud slinging. With very great respect to the learned Judge, we find in the judgment certain observations which lend support to the insinuation made by the petitioner that the Municipal Commissioner did not act as he should have acted. We have carefully gone through the record of this case, and, as I shall presently point out, in our opinion the Municipal Commissioner in this case has acted conscientiously with a full sense of responsibility of his duties and there is absolutely no justification for any suggestion that he acted with any impropriety or contrary to the interests of the Municipality which he had to serve as the most important executive officer of that body. It is also to be noted that in the petition itself the petitioner had not the courage to make any suggestion against the Municipal Commissioner. There is no allegation that the Municipal Commissioner acted with any ulterior motive or for a collateral purpose or dishonestly in order to favour the Hindustan Construction Co., Ltd. But the learned Judge seems to have permitted the petitioner to advance this argument in the course of the hearing of this application. Again, we may point out how very necessary it is, before such a charge should be investigated, that there should be proper pleadings and that the charge should be formulated in the petition itself. Now, the whole basis of this attack on the Municipal Commissioner is founded on this. The Hindustan Construction Co., Ltd., quoted the rate of Rs. 39-4-0 for cutting and forming embankments. Messrs. Raoji Sojpal & Sons quoted Rs. 70, but in the conditions which they submitted along with their tender they stated that whenever blasting would be permitted their rates for rock excavation would be Rs. 35 per 100 cubic feet. In the conditions of the tender it was provided by the Municipality that no blasting operation would be permitted within five feet of the pipe line and that blasting operations might be done at the option of the contractor but the contractor would be liable for any damage which may be caused through such operations and such damage must be set right at his cost. It might be pointed out that in the conditions submitted by Messrs. Raoji Sojpal & Sons they also asked for free medical service for all labour staff which should be made available by the Municipality and that all quarry fees should be paid by the Bombay Municipality. After the tender was submitted Messrs. Raoji Sojpal & Sons on April 23, 1948, wrote to the Municipal Commissioner drawing his attention to the fact that only Rs. 35 per 100 cubic feet would be the rate charged as against the rate of Rs. 60 if blasting was allowed, and on May 3, 1948, they again wrote to the Municipal Commissioner asking him that the Municipality should ascertain what quantity could be carried out by blasting operation and thereby find out what benefit the Municipality would obtain by accepting the terms of Messrs. Raoji Sojpal & Sons. To this on May 7, 1948, the Municipal Commissioner replied through the Special Engineer that no question of granting permission for blasting operation beyond the five feet could arise and that the Municipality could not permit the option given to the contractor to be converted into a permission and it was rightly pointed out that if such a thing was done the liability to make good the damage would rest upon the Municipality and not upon the contractor. On May 10, 1948, Messrs. Raoji Sojpal & Sons again wrote saying that they would remain responsible for any loss caused by blasting operations due to their negligence. It would be clear that Messrs. Raoji Sojpal & Sons were definitely contracting their liability because under the terms of the tender they were not merely liable for negligence but they were to act as absolute insurers and they were liable in case of any damage, whether due to their negligence or not. Then on May 26, 1948, Messrs. Raoji Sojpal again wrote to the Municipal Commissioner pointing out that according to them two-thirds of the work lay beyond five feet of the pipe line and could be carried out by blasting operation and they would charge at the rate of Rs. 35, and they worked out a statement showing that if their tender was accepted the Municipality would benefit to the extent of Rs. 6 lakhs. Then on June 7, 1948, they varied their rate from Rs. 60 to Rs. 47-8-0, this being a compendious rate whether the work was done by wedging or by blasting. Now, in the report submitted by the Municipal Commissioner to the Standing Committee he has pointed out both the conditions of Messrs. Raoji Sojpal & Sons and the Hindustan Construction Co., Ltd., and he has given a specific reason why he prefers the tender of the Hindustan Construction Co., Ltd. He points out that although the Municipality was prepared to allow the contractor to carry out the work within 720 working days, the Hindustan Construction Co., Ltd., were prepared to carry out the work within 600 days. That according to him was a very important consideration, as the question of water supply was vital to the city of Bombay. He further pointed out that the Hindustan Construction Co., Ltd., had carried out similar work at the time of the Tansa Quadruplication Scheme, that they were a resourceful firm, a firm of repute, and they had on their staff competent and qualified engineers of all experience. In view of all this he recommended the tender of the Hindustan Construction Co., Ltd., for acceptance. We would again like to emphasise that the statute leaves it to the Municipal Commissioner to decide which tender is the most advantageous upon a view of all the circumstances, and it cannot be said that in making his report the Municipal Commissioner did not take a fair view of all the circumstances and that when he said that the tender of the Hindustan Construction Co., Ltd., was the most advantageous he was doing anything which indicated any partiality to the Hindustan Construction Co., Ltd., or any deliberate hostility to Messrs. Raoji Sojpal & Sons. What is more, the Standing Committee, which was the final sanctioning authority, taking this report of the Commissioner into consideration and all the requisite materials which were before that Committee, came to the conclusion that the Commissioner's view should be accepted and the tender of the Hindustan Construction Co., Ltd., accepted. The matter went further to the Municipal Corporation and the Municipal Corporation took the same view. Now, the learned Judge first makes a point against the Commissioner that he did not try to elucidate from Raoji Sojpal & Sons what their charges for medical attendant and quarry fees which they asked the Municipal Commissioner to bear would amount. It is difficult to understand why the Municipal Commissioner should ask for any further information on this point when the demand made by Messrs. Raoji Sojpal & Sons was contrary to the terms of the tender. Then the learned Judge says that the Municipal Commissioner adopted a different attitude when he came to discuss the tenders which were submitted by the Hindustan Construction Co., Ltd., to the attitude adopted by him with regard to the tender of Messrs. Raoji Sojpal & Sons. There is nothing on the record to show what the Commissioner told the Standing Committee or what discussion took place between the Commissioner and the Standing Committee. But judging by the report, which is the only document before us, the Commissioner has, as we have already pointed out, fairly drawn the attention of the Standing Committee to the various factors connected with the two tenders of Messrs. Raoji Sojpal & Sons and the Hindustan Construction Co., Ltd. Then the learned Judge suggests that the Municipal Commissioner went out of his way to specially recommend the Hindustan Construction Co., Ltd. As I have already pointed out, it was the statutory duty and the obligation of the Municipal Commissioner to recommend that tender which according to him seemed to be most advantageous. He did not go out of his way; he did something which was entailed upon him by the express terms of the Municipal Act. The learned Judge seems to think that the point emphasised by the Municipal Commissioner as to the offer made by the Hindustan Construction Co., Ltd., to finish the work in 600 days instead of 720 days was a form of special pleading adopted by the Municipal Commissioner. Again, the very expression 'special pleading' conveys an idea that the Municipal Commissioner had some special interest in the Hindustan Construction Co., Ltd., a suggestion, with very great respect to the learned Judge, without any justification whatsoever as far as the record of this case stands. Then the learned Judge says that it does not appear that the Standing Committee directed their attention to the various letters written by Messrs. Raoji Sojpal & Sons, and he further says that as the Municipal Commissioner was present at the meeting of the Standing Committee he could and should have pointed out the contents of these letters and the implications thereof to the Standing Committee. The resolution of the Standing Committee passed on the very day clearly shows that all the letters of Messrs, Raoji Sojpal & Sons were before the Standing Committee and that they were duly considered by the Standing Committee, and we do not know where the learned Judge-again with respect to him-gets this fact from that the Municipal Commissioner did not draw the attention of the committee to these letters. There is nothing in the affidavits to show what discussion took place before the Standing Committee, and again going merely by the record it is clear that every letter written by Messrs. Raoji Sojpal & Sons to the Municipal Commissioner was placed before the Standing Committee. There was no attempt to suppress any material document. Then the learned Judge says that the Municipal Commissioner remained discreetly silent in regard to the figures submitted by Messrs. Raoji Sojpal & Sons which would show a benefit of about Rs. 6 lakhs to the Municipality. There, again, we do not find any warrant for the statement that the Commissioner remained discreetly silent. He submitted to the Standing Committee the letter of Messrs. Raoji Sojpal & Sons, and as I have already pointed out, we do not know what discussion took place at the meeting of the Standing Committee. The learned Judge has also a similar uncomplimentary suggestion to make about the Municipal Corporation that they adopted wholesale without any discussion the tender submitted by the Hindustan Construction Co., Ltd. We do not know whether any discussion took place in the Municipal Corporation or not, nor do we know what attention was devoted by the members of that Corporation to this particular item on the agenda which concerned the tender of the Hindustan Construction Co., Ltd., and which would involve the Municipality in a very large expenditure. We sincerely hope that there are at least some members of the Municipal Corporation who take their duties seriously and who do attend to the items of work on the agenda. But again, with respect to the learned Judge, there is no warrant for this allegation against the Corporation and all its members that they failed to discharge their duty and accepted whatever the Municipal Commissioner and the Standing Committee told them about the matter.

14. We, therefore, are of the opinion that the act of the Standing Committee and the Municipal Corporation was not arbitrary and the sanction given by them was a valid sanction as required by the provisions of the Municipal Act. We might point out that a part of the order made by the learned Judge is in any event unsustainable because he has issued an order upon the Municipality to invite fresh and proper tenders for this particular work. Now, it is open to the Standing Committee under Section 72(3) to dispense with the inviting 6f tenders, and, therefore, even if this particular contract was invalid, the only order that could have been, made was to restrain the Municipality from executing this particular contract As to how they should enter into a fresh contract is a matter entirely within the discretion of the Standing Committee. But as we have come to the conclusion that on the merits the petitioner is not entitled to succeeded and that the contract which the Municipality intends to enter into with the Hindustan Construction Co., Ltd., is a valid contract, the order made by the learned Judge cannot stand.

15. We, therefore, allow the appeal, set aside the order made by the learned Judge and dismiss the petition. As some time was taken up both in the Court below and before us on the question of the maintainability of the petition and as the petitioner has succeeded on that preliminary point, we think the fairest order to make with regard to the costs would be that the petitioner should pay to the respondents three-fourths of the costs of the petition below and three-fourths of the costs of this appeal. As the matter was of considerable importance we allow on taxation two counsel in this appeal.


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