AHMEDALLI ABDULHUSEIN KAKA Vs. M D LALKAKA

JUDGEMENT

(1.) THERE is not much substance in this appeal. An order made by the learned Chief Judge of the Court of Small Cause's, Bombay, under Section 507, Bombay Municipal Corporation 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 pre-ferred.

(2.) 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 set back line. The owners then served notices 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 landlords applied to the Chief Judge of the Court of Small Causes under Section 507 of the Bombay Municipal Corporation 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 afford 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 occupant's 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 set back line.

(3.) 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 Section 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. Go-dambe, 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 men-tioned 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.