Citation Codes

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citation codes

Case Number

O.C.J App. No. 80 of 1952: Misc. Appln. No. 359 of 1951

Attorney(S)

K.T Desai with P.N Bhagwati, for the appellants.
Purshottam Tricumdas, for respondents Nos. 2 to 26.
Y.B Rege, for the 1st respondent.

Judges

Mr. M.C Chagla, C.J
Mr. Shah, J.

Acts

s. 507 of the Bombay Municipal Corporations Act

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Smart Summary

Judgment Summary — Chagla, C.J.

Factual and Procedural Background

The petitioners are owners of a property on Abdul Rehman Street. The Municipality served two notices on the owners requiring certain repairs. The landlords submitted plans which the Municipality did not approve and served a further notice drawing attention to a portion of the building that abutted Abdul Rehman Street and fell within the setback line; the owners were required to carry out repairs and demolish the part within the setback line.

The owners asked the occupants to vacate to enable the repairs, but the occupants refused. The landlords applied to the Chief Judge of the Court of Small Causes, Bombay, under s. 507 of the Bombay Municipal Corporations Act, which authorises the Chief Judge to make an order requiring an occupier to afford reasonable facilities to the owner for complying with any requisition made by the Municipality.

By consent of the parties the matter was referred to an architect, who reported that the rear of the building could be repaired first without requiring evacuation, and that the front should then be repaired (which would require temporary vacating). The architect noted that doing the works in that sequence would cost more than doing the repairs to the whole property at once. The Chief Judge issued an order, following the architect's report, directing the tenants to permit props at the rear and subsequently to vacate the front portion to permit setting back the front portion within the setback line.

The petitioners sought certiorari to quash the Chief Judge's order. The learned Judge (below) dismissed the petition, and the petitioners appealed. Procedurally, when the petition was filed the only respondent was the Chief Judge (respondent No. 1); the tenants were later made respondents Nos. 2–26. The learned Judge below made an order about costs in favour of the Chief Judge limited to costs up to the filing of the Chief Judge's affidavit.

Legal Issues Presented

Whether the learned Chief Judge, in making the order under s. 507 of the Bombay Municipal Corporations Act, exceeded his jurisdiction by effectively dictating to the landlords how they should carry out repairs and compelling the landlords to incur extra expenditure.
Whether the Chief Judge could determine, under s. 507, what constituted "reasonable facilities" to be afforded by occupiers, including sequencing repairs to reduce tenant inconvenience (i.e., ordering rear repairs first and front repairs later requiring temporary vacation).
What is the proper rule of practice and approach to costs when a writ petition challenges the order of a Tribunal—specifically, whether the Tribunal must be a necessary party to the petition and the consequences for costs when the Tribunal appears merely to submit to the court's orders versus when it contests the petition.

Arguments of the Parties

Appellant's Arguments (Mr. Desai)

The appellant argued that the object of s. 507 is not to empower the Chief Judge to decide how repairs should be carried out; rather, the section only authorises the Chief Judge to compel tenants or occupiers to give reasonable facilities to the landlord for carrying out repairs.
The appellant contended that by ordering the sequence of repairs (rear first, then front) the Chief Judge was compelling landlords to incur extra expenditure and was practically dictating to them how to repair their building.

Landlord's Position (Mr. Godambe)

Mr. Godambe, the advocate for the landlords, accepted the architect's report and asked the Chief Judge to make a formal order against the occupants on the basis of that report.
By requesting the order on the basis of the architect's report, Mr. Godambe effectively adopted the recommended sequence of works and the consequent requirement for tenants to provide facilities or to vacate the front portion temporarily.

Chief Judge / Tribunal's Position (Mr. Rege)

Mr. Rege for the Chief Judge contended that, having filed an affidavit setting out the facts, the Tribunal had to appear in Court in order to seek its costs; he argued that if the Chief Judge had not appeared by counsel, no order for costs in his favour would have been made.
He further argued that if the presence of counsel for the Chief Judge was unnecessary, the Chief Judge could have been dismissed from the petition at any stage after providing for his costs. He noted that when the petition was originally filed the Chief Judge was the only respondent.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

On the substantive challenge under s. 507, the Court analysed two principal points:

The Court emphasised that the architect's report was made after referral by consent of the parties and that the landlords' counsel expressly accepted that report and asked for an order on its basis. Given those facts, the Court concluded that the Chief Judge's order followed from the agreed expert recommendation and the landlords' own request; therefore, the Chief Judge did not exceed jurisdiction by making the order required by that report.
Independently of the architect's report, the Court held that the learned Chief Judge was entitled, in exercising power under s. 507, to consider the convenience of the tenants in determining what would amount to "reasonable facilities." The Court reasoned that requiring all tenants to vacate at once might be unreasonable and that it was within the ambit of s. 507 for the Chief Judge to order a sequence of works (rear first, front later) so as to minimize inconvenience. On that basis the Court concluded that the Chief Judge's order was within his jurisdiction under s. 507.

On the procedural and costs issue, the Court addressed the proper practice when a writ petition challenges a tribunal's order:

The Court laid down the rule of practice that whenever a writ is sought challenging the order of a Tribunal, the Tribunal must always be a necessary party to the petition; likewise, all parties affected by the Tribunal's order should be necessary parties.
The Court explained that, by analogy with English practice, Tribunals rarely "show cause" because most of the time they are not concerned with the Court's eventual decision; however, there are cases where the Tribunal must contest the petition (e.g., allegations the Tribunal did not give notice, parties were not heard, or that the Tribunal acted from an improper motive).
If the Tribunal elects to show cause and contest the petition, it takes the risk as to costs: if the petition succeeds the Tribunal may pay costs; if it fails the petitioner may pay the Tribunal's costs. Conversely, if a Tribunal merely appears and submits to the Court's orders without taking a contentious attitude, the Court said that ordinarily the Tribunal should not be awarded its costs (i.e., if it merely appears to file an affidavit and submit, it ought to bear its own costs).
Because the practice was not yet settled and clear in the local context, the Court declined to deprive the Tribunal of the costs already awarded by the learned Judge below but made clear that it would not increase those costs. The Court therefore affirmed the lower judge's discretion in the particular costs order made below.

Holding and Implications

Holding:

APPEAL DISMISSED.

The Court held that the order of the Chief Judge under s. 507 of the Bombay Municipal Corporations Act was within his jurisdiction. The architects' report (appointed by consent) and the landlords' request for an order based on that report supported the Chief Judge's order; additionally, the Chief Judge was entitled under s. 507 to assess what constituted "reasonable facilities" and to make orders designed to minimize inconvenience to tenants (including sequencing repairs).

Immediate consequences for the parties:

The appellants were ordered to pay the costs of respondents Nos. 2 to 26 (the occupants).
Respondent No. 1 (the Chief Judge / Tribunal) was to bear his own costs of the appeal.
Cross-objections filed by the Tribunal were dismissed; there was no order as to the costs of the cross-objections.

Practice implications:

The Court laid down a practice rule that a Tribunal must be a necessary party to any writ petition challenging its order, and that parties affected by the order should also be necessary parties.
The Court indicated that ordinarily a Tribunal which merely appears and submits to the orders of the Court should not be awarded its costs, whereas a Tribunal that contests the petition accepts the usual risks as to costs. Because local practice was not settled, the Court applied these principles without disturbing the specific costs order made below.

The summary above is based exclusively on the text of the provided opinion. No other sources or precedents were relied on in preparing this summary.

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Ahmedalli Abdulhussein Kaka And Another , (Original Petitioners) v. M.D Lalkaka, The Chief Judge Of The Court Or Small Causes, Bombay And Others

Chagla, C.J:—

There is not much substance in this appeal. An order made by the learned Chief Judge of the Court of Small Causes, Bombay, under s. 507 of the Bombay Municipal Corporations Act was challenged by the petitioners who asked for a writ of certiorari. The learned Judge dismissed the petition, and from that order of dismissal this appeal is preferred.

The petitioners are the owners of a property situate at Abdul Rehman Street. Two notices were served by the Municipality upon the petitioners calling upon them to carry out certain repairs. Plans were submitted by the landlords to the Municipality; those plans were not approved of by the Municipality, and a further notice was served upon the owners drawing their attention to the fact that a part of the property abutted upon Abdul Rehman Street and was within the set-back line, and the owners were called upon to carry out the repairs and to demolish that part of the building which was within the setback line. The owners then served notice upon the occupants of the building calling upon them to vacate the property in order to enable the landlords to carry out the repairs as requisitioned by the Municipality. But as the occupants refused to vacate, the landlord applied to the Chief Judge of the Court of Small Causes under s. 507 of the Bombay Municipal Corporations Act, and the learned Judge made an order under that section. Now that section authorises the Chief Judge of the Court of Small Causes to make an order requiring the occupier of a building to offer all reasonable facilities to the owner for complying with any requisition made by the Municipality under the Act. After the application was made, by consent of the parties the matter was referred to an architect, and the architect made his report; and in substance the report was that the landlords should first carry out repairs to the rear of the building which would not require the occupants to vacate, and after those repairs were carried out, repairs to the front of the building should be undertaken, which would require the occupants to vacate temporarily while those repairs were being carried out. The architect in his report pointed out that if the landlords carried out the repairs to the rear of the building first and then to the front of the property, it would cost them a certain amount of money more than what it would cost them if they carried out the repairs to the property as a whole. This report came before the learned Chief Judge, and on the strength of that report he made an order that the tenants should afford all reasonable facilities to the landlords to put up props in the rear portion of the building to carry out the repairs to the rear portion of the building as contemplated by the report of the architect; and he also directed by the order that after this work was carried out the tenants should remove themselves and all other persons and goods from the front portion of the premises in order to enable the landlords to carry out the work of setting back the front portion of the building which fell within the setback line.

The order of the learned Chief Judge is challenged on the ground that the learned Chief Judge by making this order is compelling the landlords to incur extra expenditure and practically dictating to the landlords how they should repair their own building. Mr. Desai on behalf of the appellant says that the object of s. 507 of the Act is not to give an authority to the Chief Judge to decide how the repairs should be carried out, but that the only object of the section is to authorise the Chief Judge to compel the tenants or the occupants to give reasonable facilities to the landlord for carrying out the repairs. In advancing this argument Mr. Desai forgets two relevant facts (i) that the architect was appointed by the consent of the parties, and (ii) Mr. Godambe, the Advocate of the Landlords, requested the learned Chief Judge to pass a formal order against the occupants for facilities to be provided by them to the landlords as mentioned in the architect's report. Therefore, Mr. Godambe accepted the report of the architect, and wanted an order on the basis of that report; and if the basis of that report were to be accepted, the only order that the learned Chief Judge could have passed was the order which in fact he did pass.

We are also not at all satisfied, that apart from the report of the architect, it was not open to the learned Chief Judge to consider the convenience of the tenants and to decide what under the circumstances of the case were ‘reasonable facilities’. It was open to the learned Chief Judge to take the view that if all the tenants were asked to vacate in order to enable the landlords to carry out the repairs on the building as a whole, it would not be asking the tenants to give reasonable facilities, but the facilities directed to be given would be unreasonable. Therefore, if the learned Chief Judge took the view that the rear portion of the building should be repaired first so that it would not cause inconvenience to the tenants, and the front portion of the building should be repaired subsequently, it is not at all sure that the learned Judge independently of the report of the architect was not making an order within the ambit of s. 507 of the Act. Therefore, in out opinion, the learned Judge below was right in holding that the order passed by the learned Chief Judge was an order within his jurisdiction.

Rather an important question of practice arises in this case with which it is necessary to deal. When the petition was originally filed, the only respondent to the petition was M.D Lalkaka, the Chief Judge of the Court of Small Causes. The learned Chief Judge filed an affidavit setting out all the facts; then on the application of the tenants they were made party respondents, and they are respondents Nos. 2 to 26. At the hearing both, the Chief Judge and the other respondents, appeared by Counsel; and when the petition was dismissed a Question arose as to what order should be made with regard to the costs of the first respondent; and the order that the Hussein learned judge made was that the first respondent should get from the petitioners only such costs as were incurred up to the date of the filing of the affidavit, including the costs of the affidavit.

The question that has been raised at the Bar is, what is the proper attitude that a Tribunal which is served with a rule in a petition filed should adopt and what is the proper order for costs that the Court should make. I think we should lay down the rule of practice, that whenever a writ is sought challenging the order of a Tribunal, the Tribunal must always be a necessary party to the petition. It is difficult to understand how under any circumstances the Tribunal would not be a necessary party when the petitioner wants the order of the Tribunal to be quashed or to be called in question. It is equally clear that all parties affected by that order should also be necessary parties to the petition. In this case the occupants of the building were vitally affected by the order of the learned Chief Judge; and it was not proper for the petitioners merely to have made the Tribunal a party to the petition, without making the occupants also parties to the petition. In England when a Tribunal is served with a rule issued by the Court of a petition, it is very rarely that the Tribunal shows cause; and this practice has grown up for obvious reasons. In a large majority of cases a Tribunal would not be concerned with the decision that the Court would give on the petition. The Tribunal has made an order; it has done its duty by deciding a particular case before it; and it would be for the Court to consider whether its decision was with jurisdiction or without jurisdiction, or whether the order, if made, was a competent order or an incompetent order. Under no circumstances would a Tribunal be interested in the decision of the matter; but there may be cases where a decision of the Tribunal may be challenged on the grounds which it would make necessary for the Tribunal to show cause against the rule issued and to contest the petition. For instance, it may be urged that the Tribunal did not give notice to the parties, or that the parties were not properly heard, or that the Tribunal was influenced by an improper motive in arriving at its decision. All these allegations would undoubtedly require a reply by the Tribunal; and in these class of cases it would be perfectly proper for the Tribunal to show cause, to appear at the hearing and to contest the petition. If the Tribunal makes up its mind to show cause and Abdul to contest the petition, then it must take the risk as to any order that might be made with regard to costs. If the petition suceeds, the Tribunal would have to pay the costs of the petition. If the petition fails, the petitioner would have to pay the costs of the Tribunal. But we wish to discourage the practice which we are told is growing up for Tribunals merely to appear and to submit to the orders of the Court. Every citizen in that sense of the term has to submit to the orders of the Court, and there is no reason why a Tribunal should file its appearance in order to do something which it will have to do, whether it appeared or not.

In this case Mr. Rege has drawn our attention to the fact that the Chief Judge submitted to the orders of the Court and that he had appeared in order to make an affidavit to place all the relevant facts before the Court. Now if the Tribunal is not contesting the petition, we see no reason why it should merely appear to file an affidavit to place all the relevant and material facts before the Court. If the Court requires any facts or information, it is always open to the Court to direct the Tribunal to file the necessary affidavit, and this can be done without the Tribunal appearing and submitting to the orders of the Court. Therefore, in our opinion, as a matter of practice if the Tribunal merely appears in order to submit to the orders of the Court, ordinarily the Tribunal should not be given its costs. If the Tribunal wishes for any reason to be present in Court and not to take up a contentious attitute, then it must indulge in that luxury at its own costs.

Now, in this case as the practice was not clear, we do not think that the Tribunal should be deprived of the costs which have been awarded to it by the learned Judge.

The Tribunal has filed cross-objections; and Mr. Rege for the Chief Judge contends that having filed the affidavit, the Tribunal had to appear in Court in order to ask for its costs. If the Chief Judge had not appeared by Counsel before Mr. Justice Tendolkar no order in his favour would have been made for costs; and Mr. Rege says that if the Counsel's presence was not necessary, the Chief Judge should have been dismissed from the petition at any stage of the hearing after making proper provision for his costs. Further in this case there is this thing to be said in favour of the Chief Judge that when the petition was originally filed, he was the only respondent. But even so if we were to give effect to the practice which we have just laid down, as the Chief Judge did not take up a controvertial attitude and merely appeared and submitted to the orders of the Court, he would not be entitled to his costs at all. But, as we just said, as the practice was not certain, as the learned Judge himself points out that it is not still well settled whether the Tribunal is a necessary party to the petition challenging the order made by the Tribunal, we do not think that we should interfere with the order of costs made by the learned Judge. But we certainly do not propose to award to the Tribunal greater costs than what has been awarded by the learned Judge below. We have been told that it is very necessary that the Tribunals, which are in large numbers and which decide several cases and whose decisions are very often challenged in this Court, should know what is the correct attitude for them to take up when the rule in a petition is served upon them. We have therefore, though it necessary to lay down a practice which can be easily conformed to by the Tribunal.

Appeal dismissed, the appellants to pay the costs of respondents Nos. 2 to 26. Respondent No. 1 to bear his own costs of the appeal.

Cross-objections dismissed. No order as to costs of the cross-objections.

Attorneys for appellant: Ambubhai & Diwanji.

Attorneys for respondents: Little & Co. & Benjamin & Co.

Appeal dismissed.

P.M.P

Ahmedalli Abdulhusse... v. M.D Lalkaka, The Chi...