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Municipal Corporation of Greater Bombay and anr. Vs. Thakurdevi Shriniwas Khemraj (Smt.) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 3178 of 1983
Judge
Reported in1986(1)BomCR40; 1985MhLJ581
ActsBombay Municipal Corporation Act, 1888 - Sections 491, 503 and 503(1); Limitation Act, 1963 - Schedule - Article 137
AppellantMunicipal Corporation of Greater Bombay and anr.
RespondentThakurdevi Shriniwas Khemraj (Smt.) and anr.
Appellant AdvocateN.V. Walawalkar, P.B. Karhadkar and M.V. Shetty, Advs.
Respondent AdvocateR.G. Jagtap, Adv. for respondent No. 1
DispositionPetition allowed
Excerpt:
.....from demand under section 491 commissioner is under statutory duty to refer dispute to chief judge of small causes court - till decision on reference under section 503 (1) no recovery proceedings can be taken by commissioner either under section 491 (2) or under section 506 - after amount is determined under section 503 same can be recovered either under section 491 (2) or under section 506 or under both sections - if suit is filed under section 506 provisions of limitation act would apply and time would begin to run from date of order made under section 503. - - referring to an earlier decision on the same question the supreme court in athani municipality's case pointed out that when it had earlier held that all the articles in the third division to the schedule, including..........which is to be made by the commissioner as mentioned in sub-section (1) above there is any period of limitation either in the bombay municipal corporation act itself or under the provisions of the limitation act, 1963. can it be said, it is asked, that the commissioner who is required to make the reference under section 503(1) can make the same at any time or whether he has to make the said reference within a particular period of time.2. the additional chief judge of the small causes court at bombay, hereinafter referred to as the small causes court, has answered the question by holding that the reference can be made only within a period of three years from the date of the dispute envisaged under that section. the small causes court came to this conclusion because it thought that.....
Judgment:

R.A. Jahagirdar, J.

1. In this petition, section 503 of the Bombay Municipal Corporation Act has come up for interpretation. That section is in the following terms :-

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

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

What we are asked to decided is whether for the reference which is to be made by the Commissioner as mentioned in sub-section (1) above there is any period of limitation either in the Bombay Municipal Corporation Act itself or under the provisions of the Limitation Act, 1963. Can it be said, it is asked, that the Commissioner who is required to make the reference under section 503(1) can make the same at any time or whether he has to make the said reference within a particular period of time.

2. The Additional Chief Judge of the Small Causes Court at Bombay, hereinafter referred to as the Small Causes Court, has answered the question by holding that the reference can be made only within a period of three years from the date of the dispute envisaged under that section. The Small Causes Court came to this conclusion because it thought that Article 137 to the Schedule of the Limitation Act applied to the reference to be made under section 503 of the Bombay Municipal Corporation Act. It came to this conclusion because it held that the reference envisaged under section 503(1) was tantamount to an application to be made by the Commissioner and since it is an application to the Civil Court, Article 137 applied and that Article provides for a period of limitation of three years from the date of the accruing of the cause of action.

3. The facts are few and they may be stated straightaway. The first respondent, hereinafter referred to as 'the property owner', was called upon by the petitioners, who are the Municipal Corporation of Greater Bombay and the Municipal Commissioner for Greater Bombay, to pay a sum of Rs. 470.30 under section 491(1) of the Bombay Municipal Corporation Act hereinafter referred to as 'the Act '. Such a requisition was made upon the property owner by the notice dated 2nd of August, 1978. There was a dispute raised by the property owner in respect of this notice and, therefore, the Municipal Commissioner was obliged to make a reference under section 503(1) of the Act, which he did on 12th of December, 1981-which was patently beyond a period of three years from the date of the demand notice and which has also been held to be beyond a period of three years from the date of the dispute raised by the property owner. The reference has been heard by the Small Causes Court as Municipal Reference No. M/699 of 1981.

4. As already mentioned above, the Small Causes Court held that the reference was nothing but a petition or an application and, therefore, it attracted the applicability of Article 137 to the schedule of the Limitation Act. If the reference is held to be an application, the view of the Small Causes Court is undoubtedly correct. At one time the question of the applicability of the Limitation Act to proceedings in different courts was the subject matter of debate and discussion. For example, in Athani Municipality v. Labour Court, Hubli, : (1969)IILLJ651SC , the question arose as to whether Article 137 of the schedule to the Limitation Act governed the applications made, for example, under section 33-C(2) of the Industrial Disputes Act. The answer was in the negative. Referring to an earlier decision on the same question the Supreme Court in Athani Municipality's case pointed out that when it had earlier held that all the articles in the third division to the schedule, including Article 181 of the Limitation Act of 1908 governed applications under the Code of Civil Procedure only, it clearly implied that the applications must be presented to a Court governed by the Code of Civil Procedures. It was further pointed out that at best the further amendment now made enlarged the scope of the third division of the schedule so as also to include some applications presented to courts governed by the Code of Criminal Procedure also. However, one factor remained constant and that is that the applications must be to courts to be governed by the articles in that division. Despite the coming into force of the Limitation Act of 1963, the scope of the various articles in the third division could not be held to have been so enlarged as to include within them applications to bodies other than courts such as a quasi judicial tribunal, or even an executive authority.

5. This decision was affirmed by the Supreme Court in Nityanand v. L.I.C. of India, : (1969)IILLJ711SC . However, a query was raised in paragraph 4 of this judgment and it was stated as follows :

'It is not necessary to express our views on the first ground given by this Court in Civil Appeals Nos. 170 to 173 of 1968. D/-20-3-1969 : : (1969)IILLJ651SC . It seems to us that it may require serious consideration whether applications to courts under other provisions, apart from Civil Procedure Code, are included within Article 137 of the Limitation Act, 1963, or not.'

This question was indeed seriously considered in Kerala State Electricity Board v. P. Kunhaliumma, : [1977]1SCR996 . The provisions of the residuary article in respect of the applications to be filed in the Civil Courts, namely Article 181 of the 1908 Limitation Act and Article 137 of the 1963 Limitation Act were subjected to a detailed review. It was noticed that the words 'any other application' under Article 137 to be found in the Limitation Act of 1963 could not be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. It was further laid down that any other application under Article 137 would be a petition or any application under any Act. But it has to be an application to a Court. In the facts in Kerala State Electricity Board's case, the petition was filed before filed before the District Judge under section 16(3) of the Indian telegraph Act and it was held that the petition was an application falling within the scope of Article 137 of the Limitation Act, 1963. Since it was filed beyond a period of three years in that case it was held to be barred by time. In the instant case the reference has been made by the Commissioner to a Civil Court, namely the Small Causes Court, and if that reference is held to be an application, as it has been held by the said Court, then naturally Article 137 would be attracted and if the reference has been made beyond a period of three years from the date of the dispute, then it would necessarily be barred by limitation.

6. But the question is whether the reference made under section 503(1) of the Act is an application at all Mr. Walawalkar, the learned Advocate appearing in support of the petition, has urged that the reference which is made by the Commissioner under section 503 of the Act is not an application or a petition at all. On the other hand, it is the discharge of a duty cast upon him by the statute itself. By making such a reference, says Mr. Walawalkar, the Commissioner is not applying to the Court to do a particular thing or to grant a particular relief in his favour. We are inclined to agree with this submission. An application proper understood is the voluntary act of applying to another person or authority for seeking a relief. This act may be in exercise of a right conferred upon the person concerned. Seldom, if at all, is it pursuant to a duty imposed upon a person or pursuant to a power given to a person or authority making the order or reference. It may be true, as has been mentioned by the Small Causes Court and as also has been pointed out by the Supreme Court in the Kerala State Electricity Board's case, that an application can also be called a petition. Even then a reference under section 503 of the Act cannot be said to be a petition. A petition is the action of formally asking, begging, supplicating, or humbly requesting (see the Shorter Oxford English Dictionary. Third Edition, page 1483). It is the supplication or a prayer or requesting the person to whom that application is made to grant some relief in favour of the person so applying.

7. References to be made under the statutory provisions are not unfamiliar in this country. One such reference which immediately comes to the mind is the made under section 18 of the Land Acquisition Act. As is well known, after an award is made under section 11 of the Land Acquisition Act a person who has not accepted the award may by written application to the Collector require that the matter be referred by the Collector to the Court for determination of the amount of compensation. Under section 18(1) of the Land Acquisition Act the person who is aggrieved by the amount of compensation given under the award has been given a right to require the Collector to refer the matter to the Court which will then be called upon to determine the amount of compensation which should be properly paid to the claimant. The application which a person aggrieved by the award makes has to be, however, made within the time prescribed under sub-section (2) of section 18. Neither under the Land Acquisition Act nor under any other statute has the period of limitation been provided during which the Collector is required to make the reference under the provisions of the Land Acquisition Act pursuant to the application made by the person aggrieved by the award.

8. The nature of the act involved in making the reference by a person or a functionary can be understood if the circumstances giving rise to the act of making the reference are properly appreciated. Under the Land Acquisition Act a person is aggrieved by the amount of compensation that may be paid under the award. He makes an application to the Collector requiring him to refer the question to the Court for determining the amount of compensation that should be properly paid to him. In other words, he is contending that the amount of the compensation under the award is inadequate. A dispute has thus arisen and this dispute has to go before the Civil Court through the intervention of the Collector who is under a statutory duty to refer the matter to the Civil Court provided, of course, the other conditions mentioned in section 18 are satisfied. The Collector himself while making the reference to the Court is only requesting the Court to resolve the dispute which has been raised by the claimant. As far as the authority making the reference itself is concerned, no relief is claimed by him. The question, therefore, of applying any law of limitation to the order of a reference to be made by the Collector under the provisions of the Land Acquisition Act does not arise at all.

9. A question is asked as to what would happen if the Collector does not make the reference at all or does not make the reference within a reasonable time The parties are always free to adopt appropriate proceedings to compel the Collector to discharge his duty of making the reference. If the application presented by the party is otherwise in order, a writ of mandamus, for example, can always be issued by the High Court compelling the performance of the statutory duty by the Collector. If the Collector delays making the reference, he will be called upon to pay interest from the date of the award on the additional compensation which may be ordered to be given by the Court in the reference. In other words, the Collector will be responsible for the additional compensation which may be ordered to be given by the Court in the reference. In other words, the Collector will be responsible for the additional burden that will be thrown upon the exchequer, if he neglects to make the reference within a proper time. If in the statute itself there is no provision for compelling the performance of the duty of making the reference within a particular time, it is not possible to see how such a period of limitation can be imported can be imported otherwise.

10. Returning to section 503 of the Act, it is noticed that the Commissioner is required to make a reference to the Small Causes Court under certain circumstances. There is in the first place a demand for the payment of expenses made by the Commissioner under section 491 of the Act. If the right to demand or the amount of the demand is disputed, or even the necessity for taking the temporary measures under section 329 on account of which the demand is made is also disputed, the Commissioner 'shall refer the case for the determination of the Chief Judge of the Small Causes Court'. Whenever, therefore, there is a dispute either of the amount or of the necessary of incurring the expenses on account of which the amount is demanded, the Commissioner is in law bound to make the reference to the Small Causes Court. That dispute, therefore, has got to be resolved by the Small Causes Court. Till the resolution of that dispute the Commissioner cannot proceed to recover the sum which he has claimed in his demand notice. It is only after the decision is given on the dispute raised by the property owner and referred to the Court by the Commissioner can proceed to recover the amount. Even then he can recover only such amount as shall be ascertained to be due by the Court.

11. The apprehension of the delayed reference by the Commissioner can be easily disposed of by merely noting that it is the Commissioner who is interested in the recovery of the amount due from the property owner and naturally one must proceed on the basis that he will expeditiously make the reference to the Court. If he does not do so, it is he who will be responsible for the delay in recovering the amount due to a public body and to that extent he can be said to be acting negligently. The property owner is not prejudiced if the reference is made belatedly by the Commissioner. It must be noted that what is to be decided by the Chief Judge of the Small Causes Court in a reference under section 503 of the Act is the amount properly due from the property owner to the Municipal Commissioner. On the amount so determined to be due by the Court no interest is payable under the provisions of the Act. The Commissioner, therefore, will be acting negligently if he makes the reference belatedly. It may also be noted that any belated action by the Commissioner may result in the possibility of non-recovery of the amount in certain cases. On the ground of the apprehension that the Commissioner may make a reference after a long time, one cannot infer that there should be some limitation within which the order of reference must be made by the Commissioner. The Act itself does not mention any period of limitation within which the reference is to be made. If the reference is not an application then the provisions of the Limitation Act relating to the applications to be made to the Civil Court do not apply. It is, therefore, not possible to agree with the proposition that for a reference to be made under section 503 of the Act there is a period of limitation on the analogy of an application to which Article 137 of the Schedule to the Limitation Act applies.

12. At this stage it will not be inappropriate to notice the fact that the Act itself recognises three kinds of proceedings, namely application, appeal and reference, which arise under the provisions of the said Act. Section 509 of the Act provides that the State Government may from time to time by notification in the Official Gazette prescribe the fee to be paid on any application, appeal or reference made under the said Act to be Chief Judge of the Small Causes Court. The existence of three kinds of proceedings arise pursuant to the references, application or appeals is, therefore, clearly recognised. Indeed, if one examines some provisions of the Act it will be easily noticed that there are such three different types of proceedings arising under the provisions of the Act. Under section 301(4) of the Act if, when the Commissioner requires a building to be set forward, the owner of the building is dissatisfied with the price fixed to be paid by the corporation or any of the other terms or conditions of the conveyance, the Commissioner shall, upon the application of the said owner at any time within fifteen days, after the said terms and conditions, are communicated to him, refer the case for the determination of the Chief Judge of the Small Causes Court, whose decision thereupon shall be conclusive. This provision therefore, shows two things. The owner of a building can make an application to the Commissioner if he is dissatisfied with the terms and conditions subject to which the Commissioner will take an action. This application, as the provision itself shows, has to be made within 15 days after the said terms and conditions are communicated to the owner of the building. Here in the Act itself a period of limitation for making the application is prescribed. However, no period is prescribed within which the Commissioner has to make a reference to the Chief Judge of the Small Causes Court. This provision seems to be analogous to the provision contained in section 18 of the Land Acquisition Act.

13. Then there is section 354-RH which deals with the power of the Court to determine the lease where the premises are demolished. Where any premises in respect of which a clearance order has become operative from the subject-matter of a lease, either the lessor or the lessee may apply to the Chief Judge of the Small Causes Court for an order under this section. No period of limitation is prescribed in this section for the application which is to be made either by the lessor or by the lessee. Since this is an application which is to be made to the Chief Judge of the Small Causes Court, the application will be to a Court and, therefore, the residuary Article 137 of the Schedule to the Limitation Act 1963 will naturally apply. Patently what is being done by a lessor or a lessee under section 354-RH is an application to the Court.

14. The provisions of section 504 of the Act also may be noticed at this stage. This section deals with a case which does not fall under section 491 of the Act. In a case not so falling under section 491, if any person is required to pay any expenses or any compensation and if the amount to be so paid is disputed, that dispute has to be determined by the Chief Judge of the Small Causes Court. The dispute is brought before the said Judge on an application made to him, naturally, by a person who is disputing the amount to be paid. The section itself provides that such an application has to be filed within one year from the date on which the expenses or the compensation first becomes claimable. We have thus seen three types of application. One is an application under section 301(4) which is to be made to the Commissioner for referring the dispute to the Court of Small Causes and a period of limitation is provided for making the application to the Commissioner. Then there is section 354-RH in which an application is to be made directly to the Chief Judge of the Small Causes Court, but the section itself does not provide for any period of limitation. The provisions of Article 137 of the Schedule to the Limitation Act will naturally apply. The third case is one where an application is to be made directly to the Court under section 504 and the period of limitation provided by the said section itself.

15. Some provisions relating to the appeals may also be conveniently considered at this stage. Section 217 of the Act provides for appeals against any rateable value to tax fixed or charged under the Act. Those appeals are to be heard and determined by the Chief Judge of the Small Causes Court. The period of limitation is provided in sub-section (2) of section 217. Section 378-H of the Act provides for an appeal by a person aggrieved by a demolition order under section 378-B or section 378-E. That appeal has to be preferred within 20 days from the date of the order to the Chief Judge of the Small Causes Court. Similarly for preferring an appeal against the refusal of a licence by the Municipal Commissioner, the period of limitation is sixty days. This is so provided in section 394(5) of the Act. The consideration of these provisions was for the purpose of underlining the fact that the Act itself recognises that there are three types of proceedings which arise pursuant to applications, appeals and references. A reference under section 503, which is to be made by the Commissioner in the discharge of his statutory duty, therefore, cannot be included in the class of applications which are provided for separately under the other relevant provisions of the Act. If this is so then, naturally, the period of limitation provided for an application to be made to the Court under Article 137 of the Schedule to the Limitation Act, 1963 cannot apply at all. The necessary corollary would be that there is no period of limitation at all for making a reference under section 503 of the Act.

16. A brief reference to some other provisions of the Act is not unwarranted when one is examining the provisions of section 503. Reference has already been made to section 504. It has already been stated earlier that whenever there is any dispute in any case not falling under section 491 of the Act about the amount of expenses or compensation which has to be paid the person so disputing may make an application to the Chief Judge of the Small Causes Court within one year from the date when such expenses of compensation first becomes claimable. The determination of the amount which is to be paid by the person disputing the amount is to be made by the Chief Judge of the Small Causes Court. When the amount is ascertained by the Chief Judge of the Small Causes Court under the provisions of section 504 and if, on demand, the amount so ascertained is not paid by the person liable to pay, then the amount becomes due as if the same were due under a decree of the Small Causes Court. This is so provided in section 505.

17. Apart from this there is another section, namely section 506 of the Act, which says that instead of proceeding in any manner aforesaid for the recovery of any expenses or compensation of which the amount due has been ascertained as hereinbefore provided, the sum due may be recovered by a suit brought against the person liable for the same in any Court of competent jurisdiction. In other words, section 506 provides for an additional mode of recovery of the sum due which has been ascertained as provided in the earlier sections. The amount is ascertained in a reference made by the Commissioner under section 503. Section 503 itself does not provide for a mode of recovery. But section 491(2) does. If, therefore, the amount which has been found due by the machinery provided under section 503 of the Act is not paid or does not become entirely recoverable under section 491(2), then the Municipal Commissioner may file a suit for its recovery as provided for in section 506. But before he Commissioner proceeds to file a suit under section 506 of the Act for recovery of an amount which is covered by the provisions of section 491 read with section 503 of the Act, the amount claimable by the Municipal Commissioner must have been determined by the machinery provided under section 503. This has been explained by a judgment of this Court in Bombay Municipality v. Bhagwandas, : AIR1978Bom271 .

18. The facts of that case disclosed that the owners were required to carry out repairs to the flooring of a building. On their failure the Municipal Commissioner got the work executed through an approved contractor and a demand was made for the expenses so incurred under section 491. The owners disputed the amount. The Corporation straightaway filed a suit for the recovery of the amount. The Small Causes Court dismissed the suit taking the view that a suit as contemplated by section 506 could be filed only after the amount due had been determined under section 503. This view of the Small Causes Court was challenged by the Corporation in this Court. Chandurkar, J., (as he then was) who decided the case concurred with the view taken by the Small Causes Court by noticing that there is a mandatory duty cast upon the Municipal Commissioner to refer a dispute arising under section 491 to the Court under section 503. Sub-section (2) of section 503 specifically requires the Commissioner to stay all proceedings for recovery of the amount until the amount to be recovered is ascertained under sub-section (1) of section 593. A dispute which arises has got to be resolved under section 503 and no suit, therefore, could be straightaway filed under section 506 till the dispute is resolved and the amount due is ascertained under section 503.

19. There are certain observations in this judgment in Bhagwandas's case which seem to suggest that even after the ascertainment of the amount due is made under section 504 of the Act, the Commissioner can possibly file a suit under section 506. These observations seem to be of doubtful validity because section 505 of the Act itself provides that the amount ascertained in accordance with section 504 shall be recovered as if the same were due under a decree of the Small Causes Court. It is not seen how and when the amount is made recoverable as if it is due under a decree of the Small Causes Court under section 505 of the Act the Commissioner is still required to file a suit under section 506. Indeed, the judgment in Bhagwandas's case specifically mentions that sections 504 and 505 were not material for the purpose of the disposal of that case.

20. In sum it can be said that-

(1) Section 503 of the Bombay Municipal Corporation Act applies to a case covered by section 491 of the said Act; (2) In case of a dispute arising from a demand made under section 491 of the Bombay Municipal Corporation Act, the Commissioner is under a statutory duty to refer the dispute to the Chief Judge of the Small Causes Court for determination; (3) The reference so made is not an application. Therefore, Article 137 of the Schedule to the Limitation Act, 1963 does not apply to the said reference; (4) Till the decision on the reference under section 503, no recovery proceeding can be taken by the Commissioner either under section 491(2) or under section 506 of the Act; (5) After the amount is determined in a reference made under section 503, the amount can be recovered either under section 491(2) or under section 506 or under both the sections; (6) If a suit is filed under section 506 of the Act, the provisions of the Limitation Act, 1963 will apply and time will begin to run from the date of the order made under section 503 of the Act.

21. In the result, this petition is allowed. The order dated 18th February, 1983 passed by the learned Additional Chief Judge of the Small Causes Court at Bombay in Municipal Reference No. M/699 of 1981 is set aside. The said reference is restored to the file of the Chief Judge of the Small Causes Court and the same shall be heard and disposed of in accordance with law.

There will be no order as to costs in this petition.


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