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Ram Ugrah Singh Girjarsingh and anr. Vs. Board of Trustees of the Port of Bombay - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1090 of 1983 with Civil Application No. 1560 of 1983
Judge
Reported in1983(2)BomCR447
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 4; ;Bombay General Clauses Act, 1904 - Sections 3(26); Major Port Trusts Act, 1963
AppellantRam Ugrah Singh Girjarsingh and anr.
RespondentBoard of Trustees of the Port of Bombay
Appellant AdvocateC.V. Mandavia, Adv.
Respondent AdvocateU.J. Makhija, Adv. i/b. Mulla and Mulla and Craigie Blunt and Caroe
Excerpt:
.....1963'.the present board of trustees of the port of bombay are admittedly constituted under section 3 of the major ports trusts act, 1963 and like the board under the act of 1879 the present board is also a body corporate entitled to sue and is liable to be sued in the name of the board of trustees. mandavia that the words 'legally entitled to, or entrusted by the government with the control or management of a municipal or local fund' must qualify the words 'body of port trustees or commissioners' in my opinion not well-founded. section 88 provides that the moneys credited to the general account under the provisions of section 87 shall be applied by the board in payment of the various changes mentioned in section 88. those charges include interest and instalments of the board due in..........power under the law to control or manage local fund. he has also contended that the body of the port trustees must have certain autonomous powers in order to qualify to be a local authority. the arguments of mr. mandavia are based upon the definition of local authority to be found in section 3(26) of the bombay general clauses act, 1904. reproduction of the said definition, therefore, becomes necessary.5. section 3(26) of the bombay general clauses act, 1904, says that :'local authority' shall mean a municipal corporation, municipality, local board, body of port trustees or commissioners or other authority legally entitled to, or entrusted by the government with, the control or management of municipal or local fund.'a proper analysis of this definition, in my opinion, should lead one.....
Judgment:

R.A. Jahagirdar, J.

1. An application, being Ejectment Application No. 5/23/E of 1975, has been filed in the Small Causes Court at Bombay, by the Board of Trustees of the Port of Bombay, which is the respondent in this petition, against two petitioners under section 41 of the Presidency Small Cause Courts Act before its amendment in 1976. That application has been filed for ejecting the petitioners from a plot of land measuring 301. 01 sq. metres which is in possession of the petitioners under the permission granted by the respondent. In that application the petitioners raised a contention that they are the tenants of the premises from which they are being sought to be ejected. The contention of the respondent that the premises in question are exempted under section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as 'the Bombay Rent Act', was countered by the petitioners by contending that the respondent is not a local authority.

2. The learned Judge was called upon to decide the question as to whether the respondent is a local authority. The answer of the Court below was in the was in the affirmative. This order was passed by the Court below by its judgment and order dated 20th January, 1983 which is challenged in this petition under Article 227 of the Constitution.

3. The importance of the question as to whether the respondent is a local authority arises from what is mentioned in section 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act which provides that the Act shall not apply to any premises belonging to a local authority. If the respondent is not a local authority then, may be, the petitioners would be protected by the provisions of the Bombay Rent Act. If the respondent is a local authority, the exemption will apply and the petitioners will not be entitled to invoke the protection under the provisions of the Bombay Rent Act.

4. Mr. C.V. Mandavia, the learned Advocate appearing in support of this petition, has contended in the first place that the Board of the Trustees of the Port of Bombay is not a local authority. Secondly, he has contended that even if it is a local authority then it must have power under the law to control or manage local fund. He has also contended that the body of the port trustees must have certain autonomous powers in order to qualify to be a local authority. The arguments of Mr. Mandavia are based upon the definition of local authority to be found in section 3(26) of the Bombay General Clauses Act, 1904. Reproduction of the said definition, therefore, becomes necessary.

5. Section 3(26) of the Bombay General Clauses Act, 1904, says that :

'local authority' shall mean a municipal corporation, municipality, local board, body of port trustees or commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of municipal or local fund.'

A proper analysis of this definition, in my opinion, should lead one to hold a local authority means---

(i) a municipal corporation,

(ii) municipality,

(iii) local board,

(iv) body of port trustees or Commissioners,

(v) or other authority legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund.

In my opinion, therefore, if a body of port trustees is included in the definition of local authority under the Bombay General Clauses Act, then nothing more remains to be inquired into to hold that it is a local authority. It may be noted that prior to the coming into force of the Major Port Trusts Act, 1963, the Bombay Port which has been always a major port was managed by a board of trustees called the Trustees of the Port of Bombay constituted under section 4 of the Bombay Port Trusts Act, 1879. That board was a body corporate having a perpetual succession and common seal. By the provisions of section 4 of the Bombay Port Trusts Act, 1879 it was empowered to sue and was liable to be sued in the name of the Trustees of the Port of Bombay. It was thus a body of trustees of a port.

6. Subsequently, Parliament passed an Act called 'The Major Port Trusts Act, 1963'. The present board of trustees of the Port of Bombay are admittedly constituted under section 3 of the Major Ports Trusts Act, 1963 and like the Board under the Act of 1879 the present board is also a body corporate entitled to sue and is liable to be sued in the name of the board of trustees. Admittedly, therefore, the present board of trustees is also the body of port trustees. As I read the definition contained in section 3(26) of the Bombay General Clauses Act, the body of port trustees could be regarded as local authority.

7. The contention of Mr. Mandavia that the words 'legally entitled to, or entrusted by the Government with the control or management of a municipal or local fund' must qualify the words 'body of port trustees or commissioners' in my opinion not well-founded. If the contention of Mr. Mandavia is accepted then the words so bracketed will also have to qualify the words, 'municipal corporation, municipality or local board.' It is not open to find out whether every municipal corporation is entitled to the control and management of municipal fund; similarly, it is not open to find out whether every local board is entitled to the control and management of a local fund. Every organisation that has been specifically mentioned in the definition contained in section 3(26) must necessarily mean local authority. The words beginning with 'legally entitled to' and ending with the words 'local fund' apply to 'other authority' that is mentioned in section 3(26). Where a specific body or authority has been mentioned the words 'legally entitled to the control or management of local fund' do not qualify the same.

8. Even if it is held that the words 'legally entitled to or entrusted by the Government with the control or management of a municipal or local fund' qualify the words 'body of port trustees or commissioners', is in my opinion, looking to the provisions of the Major Port Trusts Act, 1963, the board of trustees of a major port is a local authority. It is easily seen that the board of trustees of a major port is in law entitled to the control or the management of a local fund. Chapter VI of the Act of 1963 provides for the imposition and recovery of rates at the major ports. Chapter VII of the Act bestows upon the board borrowing powers subject only to certain limitations. Chapter VIII of the Act deals with the revenue and expenditure. In particular section 87 provides that all moneys received by or on behalf of the board under the provisions of the Act and all fines and penalties creditable to the pilot age account of the board shall be credited to a fund called 'the general account of the port'. In other words, there is only a general account of the port. Section 88 provides that the moneys credited to the general account under the provisions of section 87 shall be applied by the board in payment of the various changes mentioned in section 88. Those charges include interest and instalments of the board due in respect of loan that may have been taken by the board, salaries, fees, pensions and gratuities of the board as well as its employees among others. The board has also been given power under other sections of Chapter VIII to apply any sum credited to the general account towards deficits in the pilot age account of the port, to set apart such sums out of surplus income as it thinks, fit, as a reserve fund or funds for the purpose of expanding existing facilities and to reserve and set apart any securities to be issued by the Board on account of any loan. In my opinion, therefore, there is enough power which can be called entitlement in the Board of Trustees under the Act of 1963 to control and manage the fund which it is entitled to raise and receive under the provisions of the Act itself. The question is whether it is a local fund.

9. The phrase 'local fund' has not been defined under the General Clauses Act or under any other Act. In Union of India v. R.C. Jain, : (1981)ILLJ402SC , on which Mr. Mandavia places reliance in another context and to which I will refer briefly, the question arose as to what would constitute a local fund. The Supreme Court was concerned with the interpretation of section 23 of the Delhi Development Act under which the Delhi Development Authority was constituted. Examining the said provision, the Supreme Court mentioned as follows :---

'It cannot be said that the fund of the Authority, required to be maintained by section 23 of the Delhi Development Act, is not a local fund as no part of it flowed directly from any taxing power vested in the Delhi Development Authority. When it is said that one of the attributes of a local authority is the power to raise funds by the method of taxation, taxation is to be understood not in any fine and narrow sense as to include only those compulsory exactions of money imposed for public purpose and requiring no consideration to sustain it, but in a board generic sense as to also include fees levied essentially for services rendered. It is now well recognised that there is no generic difference between a tax and a fee; both are compulsory exactions of money by public authority.'

10. I have already referred briefly to the provisions of the Major Port Trusts Act, 1963 under which the Board has been empowered to raise money by way of rate. Those rates are not necessarily equivalent to the value of the services rendered by the Board. They are thus in a broad generic term taxation as interpreted by the Supreme Court in Union of India v. R.C. Jain. It cannot also be disputed that the other provisions of the Major Port Trusts Act, 1963, empower the Board to deal with and control the fund which it has raised by exercising the power conferred by the provisions of the Major Port Trusts Act. However, it has been contended with great persistence by Mr. Mandavia that there are several restrictions on the exercise of the powers of the board and the ultimate power of supervision and control has been reserved with the Central Government. In my opinion, this aspect of the power of trustees constituted under the Major Port Trusts Act does not detract from the fact that the board is entitled to control and manage what could be called a local fund constituted under the provisions of the Act itself. That the Central Government has reserved its power to have supervision does not detract from the power which undoubtedly vests in the Board to control and manage the local fund. In my opinion, therefore, even if it is held that the body of the port trustees must have legal authority to control and manage a local fund in order to fall under Clause (26) of section 3 of the Bombay General Clauses Act, such requirement has been fulfilled by the provisions of the Major Port Trusts Act.

11. Mr. Mandavia has placed considerable reliance upon some observations made by the Supreme Court in the above mentioned case, namely Union of India v. R.C. Jain. According to Mr. Mandavia, a body of trustees or for that matter the Board of Trustees constituted under the Major Port Trusts Act, in order to be legally a local authority must possess the attributes of the local authority as mentioned by the Supreme Court in the aforesaid judgment. In my opinion, this contention is misconceived. If the definition of the local authority mentions specifically and not in a generic way the body of port trustees, then the question as to whether that body could possess certain attributes of a local authority is totally irrelevant. In the case before the Supreme Court the question was whether the Delhi Development Authority was a local authority. Delhi development Authority is not mentioned in section 3(31) of the Central General Clauses Act which was applicable to the case before the Supreme Court. The question, therefore, arose as to whether it was a local authority as mentioned in the said provision in the Central Act. While considering that question the Supreme Court noticed that a body to be called a local authority must possess certain attributes. When a particular body, such as municipality or a local board or a body of port trustees has been specifically mentioned in the definition, the question of finding out whether it possesses any attributes as mentioned in the section does not arise at all.

12. Mr. Mandavia's reliance on another judgment of the Supreme Court, namely the one in Valjibhai Muljibhai Sonaji v. The State of Bombay A.I.R. 1963 S.C. 1980, is also, in my opinion, not relevant. In that case the question was whether the State Transport Corporation which was incorporated under the Road Transport Corporation Act, 1950, was a local authority. The Supreme Court held that the State Transport Corporation was not incorporated under the Royal Charter or Letters Patent or registered under the provisions of any Act mentioned in section 3(8) of the Land Acquisition Act. The question before the Supreme Court in that case was whether it was a local authority within the meaning of the provision of section 6(1) of the Land Acquisition Act. Finding that the State Transport Corporation was incorporated under the Road Transport Corporation Act, the Supreme Court held that the Corporation was company and not a local authority. In my opinion, this judgment is totally inapplicable to the facts of the case before me.

13. In order to underline his argument that the board of trustees under the Major Port Trusts Act cannot be a local authority because it does not possess autonomy and other attributes of a local authority, Mr. Mandavia referred to a judgment of the Gujarat High Court in State of Gujarat v. The Board of Trustees of Port of Kandla 20 G L R 732. I have already pointed out above that once a particular board or organisation is specifically mentioned in the definition of the 'local authority' then the question as to whether that board or organisation is autonomous or not or whether it possesses or does not possess certain attributes of a local authority becomes irrelevant. It is only when a particular body or organisation claims to be a local authority under the generic term 'other authority' used in section 3(26) of the Bombay General Clauses Act that the question whether it possesses autonomy or whether it possesses attributes of a local authority as mentioned in the judgment of the Supreme Court in Union of India v. R.C. Jain, may require to be examined. In the view which I have taken it is not necessary for me to examine the judgment in The State of Gujarat v. The Board of Trustees of Port of Kandla. Even otherwise, what has been laid down in this judgment is not relevant to the question which falls to be decided by me. There the question was whether the property which vested in the Board of Trustees under the Major Port Trusts Act vested in it absolutely or it was vested in the Union of India.

14. I am, therefore, of the opinion, that the Board of Trustees of the Port of Bombay constituted under the Major Port Trusts Act, 1963, is a body of port trustees coming under the definition of 'local authority' under section 3(26) of the Bombay General Clauses Act. If this is so, the premises which are the subject-matter of the proceedings in the Court below are necessarily exempted from the provisions of the Bombay Rent Act by virtue of the provisions contained in section 4 of the said Act.

15. In the result, this petition must fail Rule is discharged with no order as to costs. Civil Application No. 1560 of 1983 filed for the purpose of stay of further proceedings stands rejected.


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