Whether application before corporation court is maintainable if landlord has remedy before rent court?

   The next contention urged on behalf of the petitioners is that the learned Chief Judge had no jurisdiction to entertain the applications under Section 507 as the owners had a special remedy under the special statute, viz., the Bombay Rents. Hotel and Lodging House Rates Control Act. 1947 for recovering possession of the premises in the possession of the tenants if the Court under that Act is satisfied under Section 13(1)(hhh) that the premises are required for the immediate purpose of demolition ordered by any local authority or other competent authority. Apart from authority, in our opinion, the contention must be rejected, because it is only in respect of suits or proceedings between landlords and tenants relating to recovery of rent or possession of any premises to which Bombay Rent Act applied and in respect of applications made under that Act or any claim or question arising out of the Act or any of its provisions that the jurisdiction of other Courts is excluded under Section 28 of the Bombay Rent Act. The application made by the owners under Section 507 of the Bombay Municipal Corporation Act does not fall under any of the categories of suits or proceedings referred to in Section 28(1) of the Bombay Rent Act. It cannot be said that an application under Section 507 relates to the recovery of possession of the premises because Section 507 empowers the Chief Judge to make a written order “requiring the occupier of the building or land to afford all reasonable facilities to the owner for complying with the notice”. Section 507 is not concerned with the termination of the tenancy or recovery of the possession of the premises but only with providing reasonable facilities to the owner to comply with a notice issued to him under the provisions of the Bombay Municipal Corporation Act. Such a question cannot be said to be a claim or question arising out of the Bombay Rent Act or any of its provisions. The tenancy is not terminated before or by making an application under Section 507. Section 507 enables the owner to get an order from the Chief Judge directing the occupants to give reasonable facilities and merely states that if the occupiers fail to afford the facilities after 8 days from the date of the order the owner shall be discharged, during the continuance of such refusal, from any liability which he would otherwise incur by reason of his failure to comply with the said provision or requisition. It is true that the consequence of the refusal is that the occupants made themselves liable to be prosecuted under Section 471, as stated above. But this is not a question or claim arising out of any provisions of the Bombay Rent Act and we find nothing conflicting between Section 13(1)(hhh) and Section 28 of the Bombay Rent Act and Section 507 of the Bombay Municipal Corporation Act from which we could infer an implied repeal of Section 354 of the Bombay Municipal Corporation Act. On the contrary, having regard to the nature and purpose of these provisions, it is clear that these sections can exist together and the applications made by the owners under Section 507 were maintainable notwithstanding Section 28 of the Bombay Rent Act. {Para 29}

 Bombay High Court

(Before K.K. Desai and Vaidya, JJ.)

Diwanchand Gupta  Vs N.M. Shah 

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Whether the court should interfere if municipal corporation issues notice for demolition of the dangerous building?

   Moreover, it is not for the Court to satisfy itself whether the building was in a dangerous condition when the notice was issued. The fact that part of the building has been already pulled down and the majority of the occupants have no grievance against the pulling down itself further shows that the allegations of mala fides made against the Assistant Engineer is baseless. The criterion of the building being in a ruinous condition or dangerous to the occupants and to the passers-by, as required by Section 354, has been applied by the Assistant Engineer in the notice which mentions that the building “is in a ruinous condition, likely to fall and dangerous to any Person occupying, resorting to or passing by the same”. As Lord Halsbury stated in Westminster Corporation v. London and North Western Railway, 1905 AC 426,

“Where the legislature has confided the power to a particular body, With a discretion how it is to be used, it is beyond the power of any Court to contest that discretion”. {Para 27}

28. In the absence of anything to show abuse of the discretion or mala fide or capricious exercise of the discretion, it must, therefore be held that the contention of the petitioners that there was an unfair discrimination against them as citizens in violation of their right under Article 14 of the Constitution of India is without any foundation.

 Bombay High Court

(Before K.K. Desai and Vaidya, JJ.)

Diwanchand Gupta  Vs N.M. Shah 

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Whether Deputy commissioner of Municipal corporation can delegate his powers to assistant engineer?

 It was next contended that the authority, who issued the notice was delegated the power to issue the notice under Section 354 by the Deputy Commissioner who was himself a deputy of the Municipal Commissioner and this violated the principle contained in the maxim delegatus non potest delegare. The law on this point is succinctly stated in Allen on Law and Orders, 2nd edition at page 204 as follows:—

“With regard to executive functions, it is clear, on the one hand, that any administrator, whether of Ministeral degree or below it must be allowed a reasonable amount of delegation in ordinary routine duties; but, on the other hand if certain specific executive functions are committed to him, he cannot, without authority, entrust them to a deputy of his own choice”.{Para 18}

19. Wade on Administrative Law, 2nd edition. 1967, at page 59 has stated the law as follows:—

“Although, therefore, the Courts are strict in requiring that statutory power shall be exercised by the, persons on whom it is conferred, and by no one else, they make liberal allowance for the working of the official hierarchy, at least so far as it operates within the sphere of responsibility of ministers of the Crown. Powers, conferred upon special statutory bodies are more jealously watched, as we have noticed. Yet the maxim delegatus non potest delegare, like so many of the other rules of administrative law, turns out to be no more than a qualified rule for the interpretation of Parliament's intentions”.

20. It is, therefore, necessary for BS to consider whether in enacting the relevant provisions of the Bombay Municipal Corporation Act, the legislature had intended that the Deputy Commissioner, to whom powers of the Commissioner were delegated, had no power to delegate the powers to the Assistant Engineer, who, in the present case, issued the notice.

21. The learned Chief Judge considered the proceedings of the Municipal Corporation of Greater Bombay at Ex. L relating to the Corporation resolution No. 820 dated October 28, 1958 and the Corporation resolution No. 331 dated May 16, 1960. which refers to the information given by the Commissioner under Section 56(2)(b) and proviso to Section 56-B (1) of the Bombay Municipal Corporation Act, stating that the Commissioner had deputed inter alia to the Deputy Municipal Commissioner Mr. S.M.Y. Shastri the powers under Section 354. He also considered Ex. H. which records the deputation of the powers to the Deputy Commissioner as well as Ex. G under which powers were delegated on September 26, 1960 to the Assistant Engineer Mr. Countinho (who issued the impugned notice) including the powers to issue notice under Section 354, and held that in view of the provisions of Section 56(3) of the Bombay Municipal Corporation Act, the Deputy Commissioner Mr. Shastri could validly delegate his powers under Section. 68 to Mr. Countinho, the Assistant Engineer. In effect, he held that as under Section 56(3) all acts and things performed and done by a Deputy Commissioner during the tenure of his office and in virtue thereof shall for all purposes be deemed to have been performed and done by the Commr., the Deputy Commissioner Mr. Shastri had a statutory authority or permission to delegate the powers of the Commissioner under Section 354 to Mr. Coutinho the Assistant Engineer. We find no reason to disagree with the view taken by the learned Chief Judge.

 Bombay High Court

(Before K.K. Desai and Vaidya, JJ.)

Diwanchand Gupta  Vs N.M. Shah 

Special Civil Appln. No. 259 of 1970, 

Decided on July 1, 1971

Citation: 1971 SCC OnLine Bom 30 : AIR 1972 Bom 316

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Whether it is mandatory for all trustees to join in eviction suit against tenant?

After hearing both the learned Counsels I am not inclined to accept the submission of Shri Abhyankar whereas I am inclined to accept the contentions of Shri Apte as I find that the Full Bench Decision of Gujrat reported in MANU/GJ/0112/1973 : AIR1973Guj113 Atmaram Ranchhodbhai v. Gulam Moyeddin,(supra) is directly on the point and arises under the Rent Act. It has been held by the Full Bench of Gujrat that unless instrument of trust otherwise provides all co-trustees must join for filing a suit to recover the possession of the property from the tenant.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 2434 and 2773 of 1982

Decided On: 04.03.1993

Nagar Wachan Mandir, Pandharpur  Vs.  Akbaralli Abdulhusen and Sons 

Hon'ble Judges/Coram:

B.N. Naik, J.

Citation: 1994(2) BomCR 251,1994 MHLJ 281

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Whether application for execution of decree which is not signed by trustees of charitable trust is maintainable?

 It is also argued that the execution proceedings ought to have been signed by all the trustees and that the Secretary of the trust cannot represent the trust to file execution proceedings. In support of this contention reliance is placed on Section 47 of the Indian Trusts Act, 1882.

7. So far as the question as to who should sign the execution proceedings and who should verify the execution proceedings is concerned, the provisions of Order 21, Rule 11(2) of the Code of Civil Procedure, 1908 are most relevant. The relevant provision reads as under :

"Written application-- (2) Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars."

This provision clearly means that it is not necessary that every time only the decree holder must file execution proceedings. It can be filed by any other person who happens to be acquainted with the facts of the case and the Court happens to be satisfied that the person so signing the execution proceedings is acquainted with the facts of the case. Here, the Secretary of the trust has signed the execution proceedings and it is very clear from the order passed by the learned Judge of the Court of Small Causes that he has not raised any doubt about the acquaintance of the Secretary with the facts of the case. So to the satisfaction of the Judge of the Court of Small Causes, the execution proceedings is rightly presented.

8. No doubt, Section 47 of the Indian Trusts Act, 1882 prohibits the trusts from delegating the powers, but the explanation to Section 47 of the Indian Trusts Act, 1882 reads as follows :

"The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section."

It means that ministerial acts can be performed by a person who is authorized by the trustees to do the needful. Learned Counsel for the petitioners has argued that no such authorization is filed by the Secretary before the Court to show that he can sign the execution petition on behalf of the trust. However, when the Court was satisfied that the Secretary was acquainted with the facts of the case and could file proceedings, I do not think that there is any substance in this contention. 

IN THE HIGH COURT OF BOMBAY

Civil Writ Petn. No. 2285 of 1997

Decided On: 21.06.2001

 Monalisa Rohinton Irani  Vs. Naval H. Tata and Ors.

Hon'ble Judges/Coram:

V.K. Barde, J.

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Whether agent can delegate his powers or duties without authority of principal?

 At this juncture, a nice legal question arises as to whether a delegate can further delegate. The axiomatic maxim is "Delecata protest as non protest delegari" The maximum lays down the general rule that an agent cannot delegate his powers or duties to another, in whole or in part, without the express authority of the principal or authority derived from the statute.

IN THE HIGH COURT OF MADRAS

Crl. R.C. Nos. 98 to 103 of 2009 and Connected M.Ps.

Decided On: 20.12.2012

 Vadivel Sizing and Weaving Mills (P) Limited Vs Fenner (India) Limited Textile Division

Hon'ble Judges/Coram:
B. Rajendran, J.

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Whether court receiver can exercise power not delegated to him?

 The Receiver is an Officer of Court and whatever powers he exercises are delegated powers of the Court which the Court expressly gives him. He has no powers except what the Court grants him. Unless the appellant can show us that in this case the Court has delegated its power of entering into a completed contract with third parties to the Receiver, any action taken by the Receiver cannot be binding upon the Court or upon the properties. 

IN THE HIGH COURT OF MADRAS

Decided On: 27.03.1924

Ratnasami Pillai Vs.  Sabapathy Pillai and Ors.

Citation: AIR 1925 Mad 318

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Whether court can delegate power to investigate to court commissioner?

Order 20VI, Rule 9 of the Code inter alia provides that in any suit in which the Court deems a local investigation to the requisite or proper for the purpose of elucidating any matter in dispute, it may issue a commission to such a person as it thinks fit directing him to make such investigation and to report thereon to the Court. From a bare reading of the rule, it is evident that a Court can appoint a Commission for elucidating any point in dispute. In the present case, there is a dispute regarding the possession of the house in dispute. The Court dismissed the application on the ground that the power to investigate regarding the possession of the house could not be delegated. The view taken by the learned trial Court appears to be erroneous on the face of it. Such a power could always be given to a Commission. In my view, the Court has acted in exercise of its jurisdiction illegally and the order is liable to be set aside. 

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 972 of 1977

Decided On: 12.12.1977

 Mukhtiar Singh Vs.Tej Kaur and Ors.

Hon'ble Judges/Coram:

R.N. Mittal, J.

Citation: 1979(2) R C R 647 P&H

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Whether advocate can attest copy as true copy in absence of delegation of said power?

 Even otherwise from the perusal of the power of attorney of the Advocate, it will be revealed that there is no delegation of authority empowering the counsel to attest the copy of the petition as a true copy under his signature. It is well settled that the power of the agent is circumscribed within the framework of the authority given by the principal. In the absence of specific delegation as to the attestation of the copy to be a true copy under the signature of the authorised agent, the Advocate is not empowered to attest it. Consequently, there is no substance in this argument either.

 To sum up, the petition being not attested under the petitioner's own signature, the mandatory provision of Part 2 of Section 81(3) has not been complied with in the case before me and so the petition is liable to be dismissed in the terms of Section 86 of the Act.

Rajasthan High Court

Bhikha Bhai vs Lalshanker And Ors. on 10 February, 1978

Equivalent citations: AIR 1978 Raj 193, 1978 (11) WLN 45

Bench: M Joshi

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Whether Court Can Delegate Ministrial Function to its staff?

Whenever a judicial officer or a Tribunal is on leave or is not able to hold the court due to some reason, the Court Master/Reader has to entertain the litigants and give them next date of hearing. This function of the Court Master/Reader is a lawful function being performed by an official of the court under the authority of the judge/Tribunal. This function is a ministerial function. The Court Master/Reader who gives dates to the litigants, in fact tells the litigants that they have to appear on the next date of hearing. The Court Master/Reader commits no wrong if he tells the litigant that on next date of hearing the matter will be taken up for the same cause for which the case was fixed on the date when the judicial officer was absent. Such an order is a perfectly lawful order. Neither the Court Master/Reader commits any illegality by telling the litigants that the previous order passed by the court, if has not been complied with, should be complied with. The purpose of Civil Procedure Code is not to harass the litigants but to see that the court is managed in a proper and effective manner and proceedings are done as per law. It is not in the interest of the litigants or justice that the Court Master/Reader fixes all the cases for proper order since the judge was absent. If he has authority to adjourn the case and give next date of hearing, he has authority to fix the case for the same purpose for which the case was fixed on the date when the judge was absent. Fixing cases for proper order means wastage of crucial time of the court on next date when the court has to take all those cases again and pass an order as to for what purpose the case would be taken up on subsequent date of  hearing. An unscrupulous litigant can take benefit of such routine order of fixing cases for proper order and stop appearing on the ground that there were no directions of the court to appear and the court should has summoned him de novo. The court can delegate ministerial functions to its staff and these functions are routinely delegated. The summons of cases sent to various parties are not signed by the judge personally but are signed by the ministerial staff under the authority of the judge although summons sent to a party are the directions issued by the judge for appearance in the court on a particular date for discharging a particular function.

5. I, therefore, consider that when a Court Master/Reader, in case of Tribunal/judicial officer not holding the court passes an order directing parties to appear on a particular date and fixes the case for the same function which was to be discharged on that day and tells the parties to comply with the order passed by the court on previous hearing, he does no illegal act nor such an order can be considered as an illegal order or unauthorized order. 
DELHI HIGH COURT

M/S. New India Assurance Co. Ltd vs Shri Preet Pal Singh & Ors 

Dated:Decided On: 02.07.2010
Mac. Appeal No. 159 of 2007

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