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Mohandas Mulji Sicka Vs. the Collector of Bombay - Court Judgment

LegalCrystal Citation
Decided On
Case NumberO.C.J. Miscellaneous No. 249 of 1943
Reported in(1947)49BOMLR414
AppellantMohandas Mulji Sicka
RespondentThe Collector of Bombay
.....their case by word of mouth.;board of education v. rice [1911] a.c. 179 and local government board v. arlidge, [1915] a.c. 120 referred to. - - he has, apparently, a large family and is a man of very good position in life, and, quite naturally, required considerable premises for his occupation. i only mention this because it was perfectly possible that what he did was on reasonable grounds, and i am certainly not going to assume that he acted unreasonably. clause 12 of the order is important and i had better read it in its entirety :(1) any person aggrieved by an order passed by the controller under the provisions of this order including an order granting a certificate under the proviso to clause 8 may, within 15 days from the date on which the order is communicated to him,..........arlidge were unfit for human habitation made a closing order and refused to determine that order. arlidge appealed to the local government board. they appointed an inspector to hold a public local enquiry at which arlidge and his solicitor attended. the inspector inspected mr. arlidge's house and submitted his report, together with the shorthand notes of the proceedings, to the local government board. the local government board, or somebody on their behalf-we shall never know who-after consideration of the facts and the evidence given at the enquiry and the report of their inspector, which mr. arlidge was never shown, confirmed the refusal of the borough council to determine the closing order. mr. arlidge then obtained from a division court a writ of certiorari on the ground, firstly,.....

Blagden, J.

1. This is a rule nisi for a writ of certiorari and subsidiary reliefs which has been obtained by Mr. Mohandas Mulji Sicka, against the Collector of Bombay. The circumstances are briefly these:-

2. Mr. Sicka is the owner of a house called 'Sicka Villa' in Pedder Road in this city and used hmiself to reside till December, 1942, in Calcutta. In that month he was minded to go and live in his own house in Bombay. He has, apparently, a large family and is a man of very good position in life, and, quite naturally, required considerable premises for his occupation. At the time his house was let to three persons, one occupying each of its three floors-one Mr. Coutino lived on the ground floor, one Mrs. Fatah on the first floor, and a Mr. Potter on the top floor. With a view to getting rid of these people and occupying the whole house himself Mr. Sicka gave the tenants notice. Pursuant to such notice Mr. Potter, obligingly, went out. Mrs. Fatah apparently still holds her portion of the premises under a contractual tenancy and consequently would not go, while Mr. Coutino on the ground floor continued to occupy the premises claiming the benefit of the Rent Restriction Order. The result is that at the moment the top floor is occupied by the applicant,-and it seems that the top floor is wholly inadequate for the requirements of hie family,- the middle flat is occupied by a sitting contractual tenant and the ground floor is occupied by a statutory tenant.

3. Section 8 of the Rent Restriction Order by its proviso provides that nothing therein shall apply where the landlord has obtained a certificate from the Controller certifying that the premises are reasonably and bona fide required by the landlord for his own occupation. On June 19 last year the applicant applied to the Controller, who is defined in Section 3 of the Order, for such a certificate. His application was heard on July 12, and on the 16th the Controller recorded a finding that no such certificate should be issued. He intimated his decision to the applicant on the 19th of that month and the applicant received that intimation in the ordinary course of post on the 20th. I am not concerned with the merits of that decision, but it is fair to point out that the Controller may have thought-I do not know that he did-that the grant of a certificate would be a vain thing because it would have left Mr. Sicka with the top floor and the bottom floor and sandwiched between them on the middle floor tenant under a contractual tenancy whom he cannot turn out-an unsatisfactory state of affairs for everybody concerned. But, whether that was his reason or not, but he did refuse a certificate. I only mention this because it was perfectly possible that what he did was on reasonable grounds, and I am certainly not going to assume that he acted unreasonably. Clause 12 of the Order is important and I had better read it in its entirety :-

(1) Any person aggrieved by an order passed by the Controller under the provisions of this Order including an order granting a certificate under the proviso to Clause 8 may, within 15 days from the date on which the order is communicated to him, present an appeal in writing to the Collector of Bombay.

(2) The Collector shall then call for the record of the Controller and after examining the record and after making such further enquiry as he thinks fit, either personally or through the Controller, shall decide the appeal.

(3) The decision of the Collector, and subject only to such decision, the order of the Controller shall be final.'

The present applicant lodged an appeal in writing with the Collector of Bombay on August 3, 1943. On September 2 the Collector wrote to his attorneys as follows;-

With reference to your petition of appeal dated 8-8-43 I have the honour to state that from a perusal of the record of the ease I think that the Rent Controller is correct in not issuing the certificate. Your appeal is, therefore, summarily dismissed.

4. The contention of the applicant is that the Collector has acted in a manner contrary to natural justice in not hearing him in support of his appeal but dismissing it without a hearing.

5. The general principles of law applicable to the case are not in dispute. They are well settled by such cases as Local Government Board v. Alridge [1915] A.C. 120 and they may be briefly stated : where a non-judicial body or person is saddled by the Legislature with quasi-judicial duties it or he must, first of all, follow the procedure, if any, which the Legislature has prescribed for it or him, and if and in so far as no such procedure is prescribed it or he must act 'in accordance with natural justice'; that is only to say that it or he must hear the parties, or, at all events, the party against whom it or he is giving a decision fairly and must decide the matter itself or himself after due consideration. It must not, for example, give a decision which is the result of the arbitrament of chance. In this particular case Mr. Setalvad in his able argument contends that the Legislature by providing that the Collector shall 'decide the appeal' has impliedly prescribed the course he is to follow, viz. to hear the appellant; though all it has expressly said he must do is to examine the record.

6. The earliest case to which my attention has been called, and I think the strongest in the applicant's favour, is the case of The Queen v. Archbishop of Canterbury, (1859) 1 E.& E. 545 That was an application for a writ of mandamus to the Archbishop of Canterbury directing him to make or cause to be made enquiry into the appeal of the Rev. Alfred Poole, and to hear the said appeal and decide the merits thereof. Mr. Poole had had the misfortune to have a charge made against him by one of his fellow clerics by the name of Baring, who had formally complained to the Bishop of London alleging misconduct by Mr. Poole as the curate of a Church called St. Barnabas. The complaint was not made apparently on his own knowledge by Baring, but on stories that had been told to Baring by women who said that they had attended St. Barnabas for confession. The Bishop of London directed the appellant to appear before him, which Poole did, and he denied the statements as that those women had said, said what his own views on the subject of confession were and what his practice in that regard were. The Bishop did not confront the appellant with any of the women who made the complaints or give him any opportunity of testing their story by cross-examination or otherwise. The result was that the Bishop, although he said that he looked with much suspicion upon the particular evidence laid before him, viz. the stories which these women told, proceeded to withdraw Poole's license as the curate of St. Barnabas, A lot of correspondence followed and eventually the appellant lodged an appeal to the Archbishop of Canterbury by a petition. The Archbishop of Canterbury then proceeded according to himself in a way similar to that in which the Collector proceeded here, viz. to consider the contents of the petition of Mr. Poole, and being, as he said, 'of the opinion that upon the admissions and statements of the Rev. Alfred Poole himself that the Bishop of London had good and reasonable cause to revoke Mr. Poole's licence', gave his decision in the appeal in writing under his own hand confirming the said revocation. The result was an application by Mr. Poole for a mandamus. A very strong Court of Queen's Bench consisting of Lord Campbell, Chief Justice, and Wightman, Crompton and Hill JJ. were unanimously of the opinion that a mandamus should issue. Lord Campbell C.J. said (p. 559) :

The legislature here gives an appeal from the Bishop to the Archbishop : that implies that the appellant is entitled to an opportunity of being heard.

Mr. Justice 'Wightman said (p. 560) :

But the Archbishop looks only to those very grounds upon which the Bishop acted : and, without further inquiry, confirms his decision. That is not a 'hearing' of the appeal.

Mr. Justice Crompton said (p. 561) :

Where a statute of this kind gives an appeal, it gives, by implication, a right to be heard upon the appeal. Sect. III clearly contemplates a judicial enquiry before the Archbishop; that is, a further inquiry : not merely one upon the original documents set forth in the appeal.

Mr. Justice Hill also considered that the appellant had a right to be actually heard. At the end of his judgment he said (p. 562) :

He (Mr. Poole) has a right to be heard before the Archbishop to argue that question; and the Archbishop cannot give judgment until that question has been argued before him.

So, it seems, that the whole of that strong Bench was of the opinion that the word 'hearing' was to be taken literally and the appellant was entitled to be heard with the ears, by word of mouth, and to present his case orally.

7. Since that time, however, the cases of Board of Education v. Rice [1911] A.C. 179 and Local Government Board v. Alridge, to which I have already referred, had been decided. They were decisions of the House of Lords. They make it quite clear that it is not essential to natural justice that a quasi-judicial tribunal should, like a Court of law, hear the parties present their case by word of mouth. In Arlidge's case, which, I think, is as near to the facts of this case as one is likely to get, there was an appeal from an order of a local authority to the Local Government Board. The material provision as to procedure was contained in Section 39 of the Housing, &c.; Act of 1909, which provided that the Board should not dismiss any appeal without having first held a public local enquiry. The Hampstead Borough Council having decided that certain houses of Mr. Arlidge were unfit for human habitation made a closing order and refused to determine that order. Arlidge appealed to the Local Government Board. They appointed an inspector to hold a public local enquiry at which Arlidge and his solicitor attended. The Inspector inspected Mr. Arlidge's house and submitted his report, together with the shorthand notes of the proceedings, to the Local Government Board. The Local Government Board, or somebody on their behalf-we shall never know who-after consideration of the facts and the evidence given at the enquiry and the report of their Inspector, which Mr. Arlidge was never shown, confirmed the refusal of the Borough Council to determine the closing order. Mr. Arlidge then obtained from a Division Court a writ of certiorari on the ground, firstly, that the appeal was not shown to have been determined by the appellants or by any one lawfully authorised to act for them inasmuch as the order did not disclose by which officer of the Board the appeal had been decided-that ground does not apply to this case-and Secondly, Mr. Arlidge was entitled to be heard by the appellants. In the Court of Appeal he relied on the further ground that he was entitled to see the report of the appellant's Inspector. The House of Lords unanimously allowed the appeal of the Local Government Board from the Court of Appeal who had decided by a majority in favour of Mr. Arlidge. In the judgment of Viscount Haldane L.C. he cites with approval a passage from Lord Loreburn's judgment in Board of Education v. Rice, [1911] A.C. 179 where that learned Lord, in saying what the Board of Education in that case had to do, said, (p. 182) that the Board could obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. One complaint made by the applicant here is that he has never seen the reasons, if any, which the Controller gave for his decision. They may have contained relevant statements prejudicial to the applicant's view and he has not had an opportunity of answering them. To my mind what the House of Lords meant by 'relevant statements prejudicial to their view' were statements by or on behalf of the opposite party, not statements by a subordinate officer of the person who has to make this decision or by the inferior tribunal, if I may use that expression, as such; because from the very decision itself in Arlidge's case it is clear that the House of Lords thought that the Local Government Board were entitled to take into account the report of their own Inspector although Mr. Arlidge clearly could not contradict any relevant statement therein prejudicial to his view, because the unfortunate Mr. Arlidge was not allowed to see it. I think this is borne out by the decision in Rex v. Housing Appeal Tribunal. [1920] 3 K.B. 334 It will be seen that what happened in that case was that the local authority, which was both the inferior tribunal and the opposite party to the applicant, was permitted to make a series of statements to the appellate tribunal, (to use that expression for want of a better)-which the appellant was not given any opportunity of controverting or explaining away, e.g. one was that it was undesirable that the appellant should be allowed to use labour and material for building a cinema in Huddersfield because there was a shortage of stone in Huddersfield, and the learned counsel for the appellant there pointed out that it might be that he was going to build his cinema with ferro-concrete and not use any stones at all. There I think the expression which I have stated must refer to statements made by the opposite party, and that the case of Rex v. Housing Appeal Tribunal is a very good illustration of what quasi-judicial bodies must not do. The behaviour of the tribunal was really rather like that of a Court which, when trying a case on affidavits, does not give an opportunity to a plaintiff to put in an affidavit in rejoinder; and even a better illustration is afforded by Errington v. Minister of Health, [1935] 1 K.B. 249 where the Minister (who was the successor to the Local Government Board), having to exercise powers similar to those which were tin question in Arlidge's case, took into consideration what were described as 'ex parte statements', i.e. representations made by the local authority, one of the contending parties, which the property owner had no opportunity of answering; communicated, while the decision was pending, privately and behind the back of the property owner, with the local authority; and sent an Inspector down to have a look at the sites in question under the conduct of the local authority without any representative of the property owner being present. This is an admirable illustration of what is meant by relevant 'statements prejudicial to their view' which if the other party is not given an opportunity to deal with the tribunal is acting in a manner contrary to natural justice.

8. In the present ease it is conceded that the expression in Clause 12 'after making such further enquiry as he thinks fit' really means 'after making such further enquiries, if any, as he thinks fit,' for it would be absurd if the decision of the Collector were held to be a good one because he asked some totally irrelevant question of the Controller, but a bad one if he did not ask any questions at ail. It further seems that the Collector has called for the record of the Controller and examined it, and he was therefore in a position to decide the appeal. It is not shown or suggested that the Collector went to the site and had an interview with Mr, Coutino, the statutory tenant, behind the back of the present applicant, or that he decided the matter without reading the petition of appeal. If I was bound by the authority of Queen v. Archbishop of Canterbury, I should have come to the conclusion that he did not give the applicant a hearing, and that at the least he ought to have written to him and said, 'I am going to decide this matter on such and such a date. Have you anything further to say about it If so I shall consider it'. As it is he has merely read the proceedings and the memorandum of appeal, and it must be granted, I think, that merely the reading of the memorandum of appeal will not be a 'hearing' of the appeal within the meaning of this ruling. Beading the memorandum of appeal and the record and proceedings, which he is required to read under Clause 12 (2) may, however, be a 'hearing'. The applicant has had an opportunity of putting his case before the Collector because he could say what he liked in his memorandum of appeal and he did say a great deal. He set out substantially his whole case-quite rightly, if I may say so-and a very strong ease it was I think it is quite right that if the Collector had any further materials, if for example he had gone to look at the site and been told something by Mr. Coutino which prejudicially affected the applicant, he could not properly act on that information without at least telling the applicant what the information was and asking the applicant what he had to say about it. But it does not appear anything of that kind happened. Having, as I presume he did, read the memorandum of appeal and read the record and proceedings below, I think he was entitled to decide the appeal without any further communication with the applicant. He could not have decided it the other way without giving Mr. Coutino an opportunity of being heard. It must be noted that in Queen v. The Archbishop of Canterbury the procedure the Archbishop was to follow was not prescribed by statute and it was in those circumstances that it was held that an actual oral hearing was an implied right of the appellant. In this, as in Arlidge's case, the procedure has been prescribed up to a point, and so far it has been followed. In this connection a reference has been made to the provisions of Section 421 of the Criminal Procedure Code, which expressly empowers an appellate Court to dismiss a criminal appeal summarily and, in the case of an appellant who is in jail, without hearing the appellant or his pleader. This is relied on by Mr. Setalvad as being in his favour and showing that the Legislature thought it necessary to give to appellate Courts an express power to dismiss appeals summarily, from which he argues it should be implied that the Collector has not got the power to dismiss appeals summarily which he has purported to exercise. With great respect I do not think that is the right way to look at the matter. The Legislature, or rather the Government of Bombay, in passing the order, has made some, though meagre, provisions as to the precise procedure the Collector has to follow, and subject to the further provision I have stated, viz. that he should not act in a way contrary to natural justice, he was master of his own procedure where no express provisions as to procedure were made. I do not see why as master of his own procedure he should not have said to himself, 'I have got to follow the dictates of natural justice. I am quite confident that the Legislature when it framed the Criminal Procedure Code would not have (intended something which was naturally unjust, and therefore I shall be quite safe if I follow the procedure in cases for dealing with jail appeals under Section 421 of the Criminal Procedure Code'. I strongly suspect that he had that section in his mind, and he has done, mutatis mutandis, what I have myself done in very numerous cases when summarily dismissing jail appeals. I must say I have never felt particularly perturbed by the pangs of conscience when doing so, or that I was acting in a way contrary to natural justice.

9. A further point has been taken that the present application framed as it is against 'the Collector' is bad on the ground that 'the Collector Bombay' is not a corporation sole. It is not necessary to decide the point. I have not heard the learned Advocate General on it. But I think that the form of the procedure is sound enough. The Legislature has set up a tribunal which it calls 'the Collector of Bombay'. In supervising the activities of that tribunal under its inherent powers the process of this Court, I think, must be directed against that tribunal by that name and not by any other name. In Sheriff of Bombay v. Hakmaji Motaji & Co., I.L.R. (1926) Bom. 749,: 9 Bom. L.R. 1071 where it was laid down that the Sheriff of Bombay is not a corporation sole within the ordinary meaning of that expression is distinguishable. That was a suit for damages for negligence against 'the Sheriff of Bombay' and it is significant that the holder of the office changed about four times while the suit was pending, so the person who held the office at the time of judgment was totally different from the person who was negligent. To correct an alleged error by a public authority I think that public authority must be described in the manner in which he has been described in the Act or Order which gives him his' quasi-judicial powers.

10. The result therefore is that this rule should be discharged with costs.

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