CHARLES E RING Vs. COLLECTOR OF BOMBAY

JUDGEMENT

(1.) This is a petition for the issue of a writ of certiorari against the Collector of Bombay. The petitioner is a tenant of a building known as Wellesley House, situate at Cooperage, Bombay. It appears that sometime in 1943 the Bombay Xavierian Corporation Limited (which I will hereafter refer to as the Corporation) purchased this property for the purpose of conducting a school therein. Having purchased it, they gave a notice to the petitioner to vacate the flat in his occupation by the e September, 1943. The petitioner claimed protection under the Bombay Rent Restriction Order, 1942. On October 5, 1948, the Corporation applied to the Rent Controller for a certificate that the flat was reasonably and bona fide required by them for their own use and occupation under the provisions of Clause 8 of the Bombay Rent Restriction Order, 1942. After hearing the parties the Rent Controller intimated to the said Corporation that he was unable to issue the certificate applied for. The said Corporation presented a memo of appeal to the then Collector of Bombay, Mr. N.A. Farrouqui, who after hearing the parties declined to interfere with the order of the Rent Controller and rejected the appeal of the Corporation on February 25, 1944. Thereafter a Full Bench of this Court in Shetty V/s. Maharaja of Morvi (1944) 46 Bom. L.R. 807 F.B. held that the Bombay Rent Restriction Order, 1942, was ultra vires. As a result of this decision Act VII of 1944, known as the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, was passed. This Act was, as I will point out later, retrospective in certain particulars and included for the first time a provision for review of the orders made by the Controller or the Collector. Taking advantage of this provision, on October 14, 1946, i.e. more than two years and eight months after Mr. Farrouqui's order in appeal was made, the Corporation presented a petition for a review of the order made by the Collector on the ground that the said order appeared to have been made "on account of some mistake or error apparent on the face thereof." This petition for review was entertained by the successor of Mr. Farrouqui, Mr. R, G. Davies, and on January 81, 1947, he passed the following order: After accepting the application in review under Order XLVII. Rule 1, of the Civil Procedure Code and after reading the papers, hearing the parties represented by their solicitors, and inspecting the premises in question I am satisfied that the applicants bona fide and reasonably require the premises now occupied by the respondent. I therefore set aside the order of the learned Rent Controller dated November 20, 1943, confirmed by the Collector of Bombay dated February 25, 1944, and allow the appeal under review.

(2.) On this petition it is contended on behalf of the petitioner (1) that there was no power of review conferred on Mr. Davies at all; (2) that if there was any such power, that power could only be exercised on one of the grounds set out in Order XLVII, Rule 1, of the Civil Procedure Code, and in this case, as the order itself shows, Mr. Davies purported to exercise the power on a ground which is not covered by the provisions of Order XLVII, Rule 1; (3) assuming that this was a petition for review of the order on the ground that there was a mistake or error apparent on the face of the order, that mistake or error was not of a clerical or mathematical nature and therefore the review could only have been entertained by the same individual who made the original order and not his successor, and (4) that in any event there was a bar of limitation in that the application for review was entertained after two years and eight months from the date of the order of the Collector. If any one of these contentions of the petitioner is sustainable, then a writ of certiorari must be issued and the order must be set aside.

(3.) I will proceed to deal with these contentions in the order in which I have set them out above. The power of review is claimed on the basis of Section 38 of Act VII of 1944, which is in these terms: The Controller or Collector may review any order passed by him under any part of this Act. This section appears in Part V of the Act. Section 14 of the same Act provides for a right of appeal against the order of the Controller to the Collector. Section 15(2) of the same Act says: Every order passed or act done by such Controller or by the Collector acting or purporting to act in the exercise of the powers under the said Order (Bombay Rent Restriction Order, 1942) shall be deemed to have been passed or done under this part. Both Secs.14 and 15 appear in Part II of the Act, and Section 2 of the Act provides that Part II shall be deemed to have come into operation in the areas specified in column 1 of schedule A from the dates specified in column 2 of the said schedule. So far as the City of Bombay is concerned, the schedule provides April 22, 1942, as the date on which Part II shall be deemed to have come into effect. It is therefore urged on behalf of the Corporation that the order of Mr. Farrouqui, which was made under the Bombay Rent Restriction Order, 1942, shall be deemed to be an order under Act VII of 1944; and since it is an order under the Act of 1944, it is to be subject to the power of review given by Section 38. On the contrary, the petitioner urges that the power of review conferred by Clause 38 is only in respect of orders made under any part of the Act and not in respect of orders deemed to have been so made.