judgement:
Appeal NO. 1317 of 1975.
(From the Judgment and Order dated 8 10 1974 of the Bombay High Court in Appeal No. 73 of 1974) P.H. Parekh and Miss Maniu Jetley, for the Appellant section K. Dholakia and R.C. Bhatia, for the respondent.
F.S. Nariman and B.R. Aggarwal, for the intervener.
The Judgment of the Court was delivered by CHANDRACHUD, J.
A question of practical importance concerning the dying profession of Solicitors arises in this appeal by special leave.
The question is whether the bill of costs of a Solicitor or an Attorney who has rendered profes sional services to his client in the City Civil Court can be taxed by the Taxing Master, Original Side, Bombay High Court, and if so, whether it can be taxed on the Original Side scale.
The dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and there fore the question is not of growing importance.
All the same, though the question will by and by cease to have the importance which it has to day, we are informed at the bar that quite a few cases are kept pending in Bombay to await the decision of this appeal.
Certain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary.
The appellants appeared in the execution proceedings through a firm of Solicitors, M/s Raghavayya Nagindas & Co., respondents herein, who by the vakalatnama executed in their favour by the appellants, agreed to act, appear and plead for them in the City Civil Court.
The respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment, which was eventually raised in about 1960.
Thereafter, they submitted three bills to the appellants for their costs and remuneration.
Since the bills remained unpaid, the respond ents obtained on February 8, 1972 an order from the Prothon otary of the High Court directing the TaXing Master to tax the bills 354 The appellants appealed against the order of the Prothono tary by way of Chamber Summons which was dismissed by the Chamber Judge on October 26, 1972 with liberty to the Taxing Master to decide whether respondents were entitled to be remunerated on the Original Side scale of fees, as between an Attorney and.
client.
The Taxing Master rejected the appellants ' contention, taxed the respondent bills according to the scale of fees applicable on the Original Side of the High Court and directed the issuance of an allocatur.
Before the respondents could obtain a payment order on the basis of the allocatur, the appellants took out a Cham ber Summons.on May 7, 1973 challenging the order of the Taxing Master.
That Chamber Summons was dismissed by the Chamber Judge whose decision has been confirmed in appeal by a Division Bench.
Three contentions were raised by the appellants in the High Court: (1) A Solicitor 's bill for costs and remunera tion in respect of the work done by him in the City Civil Court cannot be taxed by the.
Taxing Master, Original Side, High Court; (2) The bill, in any event, cannot be taxed according to the scale of fees applicable on the Original Side as between an Attorney and client; and (3) The recovery of the amount taxed by the Taxing Master is barred by limi tation under article 113 of the .
The High Court rejected all these contentions by its judgment dated October 8, 1974.
Mr. Parekh, appearing for the appellants before us, did not press the third point regarding limitation and rightly so.
Article 113 of the , though residuary, applies to suits and cannot govern the special form of remedy available to the Attorneys for recovering their fees.
Proceedings in pursuance of that remedy are governed by rule 573(ii)(a) of the Original Side RUles and the proviso there to.
The proceedings for recovery of fees under those provi sions are not barred by time.
Counsel has, however, pressed the first two contentions with some zeal.
We will first take up for consideration the primary question whether the Taxing Master has jurisdiction at all to tax an Attorney 's bill of costs for professional services rendered by him to his client in connection with a litigation in a court other than the Bombay High Court, in this case the City Civil Court.
Rule 569 of "The Rules of the High Court of Bombay (Original Side), 1957" affords, in our opinion, a complete .answer to the appellants ' conten tion that the Taxing Master who is an officer of the Origi nal Side of the High Court has no jurisdiction tot tax the Attorneys ' bills in regard to work done by them in matters other than those on the Original Side.
Rule 539 occurs in Chapter XXIX of the Original Side Rules under the rubric "The Taxing Office".
The rule reads thus: "569.
The Taxing Master shall tax the bills of costs on every side of the Court (except the Appellate Side) and in the Insolvency Court.
All other bills of costs of Attorneys shall also be taxed by him when he is directed to do ' so by a Judge 's order.
" 355 The rule consists of two parts of which the first part confers jurisdiction on the Taxing Master to tax the bills of costs on every side of the High Court including bills relating to matters in the Insolvency Court but excluding those on the Appellate Side of the High Court.
If the rule were to stop with the first part, it would have been possi ble to say that the Taxing Master has no Jurisdiction to tax the bills in regard to matters outside the High Court.
But the second parts of the rule puts the matter beyond doubt by providing that all other bills of costs of Attorneys shall also be taxed by the Taxing Master it is argued on behalf of the appellants that "other bills of costs ' must be construed to mean "other bills of costs relating to matters on the Original Side of the High Court" and bills relating to non contentious matters.
We see no jurisdiction for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein.
"All other bills of costs of Attorneys" to which the second part Of the rule refers must 'mean all bills of costs of Attorneys other than those which are referred to in the first part of the rule.
That we conceive to be the plain meaning of the particular provision.
Rule 573 which was amended by Slip No. 190 also shows that the Taxing Master has jurisdiction to tax the bills of Attorneys in regard to professional services rendered by them in matters outside the High Court.
Amended rule 573(i)(a) provides that subject to the proviso and subject to the discretion of the Chamber Judge to enlarge the time, in "every suit or proceeding in the High Court" an Attorney shall lodge his bill of costs for taxation within five years after the disposal of the suit or the proceeding, an.d if an appeal is filed in the .
High Court, w!thin five years from the disposal of the appeal.
Amended rule 573(ii)(a) pro vides that subject to the proviso and to the Chamber Judge 's discretion, "In the case of matters which are not the sub ject of any proceedings in the High Court, an attorney shall lodge his bill of cost 's for taxation within five years from the completion of the matter.
" This latter rule prescribes the time within which an Attorney must lodge his bill of costs in regard to matters which are not the subject of any proceedings in the High Court.
The necessity for making this provision arose evidently because rule 569 empowers the Taxing Master to tax the Attorneys ' bills of costs in all matters except those on the Appellate Side of the High Court.
The appellants ' contention, if accepted, will render rule 573(ii)(a) otiose because according to that contention, no matter which is not the subject of any proceeding on the Original Side of the High Court or in the Insolvency Court could be taken before the Taxing Master for taxation of the Attorney 's bills.
It was then useless.
to provide that bills in regard to matters which are not the subject of any proceeding in the High Court must be filed within a particu lar period.
Apart from what appears to us to be the only reasonable construction of rule 569, the Bombay High Court, over a long course of years, has consistently taken the view that the Taxing Master has jurisdiction to tax Attorneys ' bills of costs in relation to professional services rendered by them in all matters, contentious or non contentious, and whichev er be the Court in relation to which the services 356 are rendered, except the Appellate Side of the 'High Court ill regard to which an exception has been expressly carved out by the rule '.
In Nowroji Pudumji Sirdar vs Kange & Savani(1) the appellants were represented by the respondent firm .of
Solicitors in litigation in the District Court and the Subordinate Courts of Poona.
The appellants having declined to pay the respondents ' bills on the ground that, they were excessive, respondents obtained an order from the Prothonotary for having the bills taxed by the Taxing Mas ter.
In an appeal from the decision of the Chamber Judge who upheld the Prothonotary 's order, it was contended by the appellants that the Taxing Master had no jurisdiction to .tax the bills of the respondents, firstly because the bills pertained to work which was not connected with the Original Side of the High Court and secondly because the services were rendered to the appellants by a partner of the respondent firm in his capacity as a pleader.
These conten tions were rejected by a Division Bench consisting of Sir Norman Macleod, C.J., and H.C. Coyajee, 1. who could "see no reason" why a Solicitor practising in Bombay and performing professional Services for a client regarding business in the mofussil should not be entitled to get his bills taxed by the Taxing Master on the Original Side of the High Court.
In coming this conclusion, the High Court relied on rule 494 of the Original Side Rules, 1922 which was identical with rule 569 of the Rules of 1957.
The High Court observed in Nowroji 's case that it may, be that Attorney would fall within the provisions of the Bombay Pleaders Act, 17 Of 1920, with regard to any work done in mofussil Courts after the coming into force of that Act, but that it was unnecessary to consider that question because the work for which the respondents, had lodged their bills was done before that Act had come into force, Relying upon this observation, it was submitted by Mr. Parekh that the decision in Nowroji 's case is not good law after the coming into force of the Bombay Pleaders Act.
It is not possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowroji 's case and for good reason which we will expiate while dealing with the appellants contention bearing on i the scale of fees according to which the bills can be taxed.
The relevant rule, couched in identical language age, with which the High Court was con cerned from time to time leaves no doubt that the Taxing Master has the jurisdiction to tax all bills of costs of Attorneys, except those in regard to the work done by them on the Appellate Side of the High Court.
In Chitnis & Kanga vs Wamanrao section Mantri(2) the appel lants, a firm of Solicitors, had obtained from the Prothono tary of the High Court an order under rule 534 of the Rules of 1936, directing the Taxing Master to tax their bill of costs relating to (1) a suit filed on the Original Side of the High Court, (2) a petition for probate in the District Court at Satara, (3) an appeal in the High Court on its (1) (2) 48 Born.
L.R.76.
357 Appellate Side and (4) certain miscellaneous work done in the mofussil.
The respondent, to whom the appellants had rendered these professional services, contended before the Taxing Master that the order of the Prothonotary was ultra vires insofar as it related to items (2), (3) and (4).
The Taxing Master rejected that contention whereupon the re spondent took out a Chamber Summons submitting that it was not competent to the Attorneys to take advantage of the procedure that applies to taxation of Solicitors ' costs on the Original Side of the High Court in respect of costs incurred in the mofussil and on the Appellate Side of the High Court.
The respondent further contended by the Chamber Summons that the matter was governed by the Bombay Pleaders Act, 17 of 1920, and therefore the Taxing Master had no jurisdiction to tax the appellants ' bill in regard to items 2, 3 and 4.
The Chamber Judge set aside the ex parte order of the Prothonotary without a speaking order, against which the appellants filed .an appeal which was heard by Sir John Beaumont, C.J., and Kama, J. The Division Bench held that the order of the Prothonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision contained in rule 534 of the Rules of 1936.
As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara Dis trict Court and the miscellaneous work done in the mofussil, the Court following the decision in Nowroji 's case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master of the Original Side, although it related to work done in the mofussil.
Adverting to the observation made in Nowroji 's case in regard to the effect of the Bombay Pleaders Act of 1920, the learned Judges held that the provisions of that Act had no effect on the question in issue.
The learned Chief Justice referred in his judgment to section 17 of the Act of 1920 which provided that a legal practitioner (which expression includ ed an Attorney) may enter into a special agreement as to the terms of his remuneration and to section 18 which dealt merely with the amount of pleader 's fees which could be recovered against the opposite party.
These provisions, according to the High Court, had nothing to do with the question whether an Attorney 's bill of costs in regard to the work done by him in the mofussil could be taxed by the Taxing Master.
in Nowroji (supra), the learned Judge held that by reason of rule 569, age & Refrigeration Limited,(1) Mody J., sitting singly, took the same view of the Taxing Master 's power to tax the Attorneys ' bills.
In that case the appellants had rendered professional services to the respondents in respect of a petition for winding up which was filed in the High Court of Rajasthan.
Respondents raised the same contenions which are raised by Mr. Parekh before us, namely, that the Prothonotary had no jurisdiction to pass the Order direct ing the Taxing Master to tax the bill and secondly, that the bill of costs could not be taxed on the Original Side scale.
Relying upon the decision in Nowroji (supra), the learned Judge,held that by reason of rule 569, the very rule with which we are concerned in the instant case, an (1) 358 Attorney of the High Court was entitled to have his bill of costs taxed by the Taxing Master in respect of professional work done by him even in a Court other than the Bombay High Court.
The learned Judge also negatived the second conten tion of the respondents before him, but we will turn to that part of the judgment later.
These decisions of the High Court contain a correct exposition of the relevant rule which was numbered as Rule No. 494 in the Rules of 1922, No. 534 in the Rules of 1936 and is now Rule No. 569 in the Rules of 1957.
The Rules of 1909 also contained a similar .rule bearing No. 491.
It is important to mention from the point of view of 'legislative ' history, that prior to the framing of the 1909 rules, the corresponding rule was Rule 544 of the 1907 Rules which.
in material respects, was worded differently.
It said: "Rules 544.
The Taxing Officer shall tax the bills of costs on every side of the Court (Except the Appellate Side) and in the Insolvency Court.
He .shall also tax all such attorney 's bills of costs as he may be directed to tax by a Judge 's order on consent of the parties, or on the application by any party chargeable with the bill.
" Under this rule, the Taxing Officer could tax the bills referred to in the second part of the rule by consent of parties only of if an application was made for taxation of the bill by a person chargeable with the bill.
Further, the second part of Rule 544 did not contain the expression "All other bills of costs" (emphasis supplied) which is to be found in the corresponding rule since the framing of the 1922 Rules.
The significant changes introduced in 1922 are directed at conferring on the Taxing Master the power to tax all bills of Attorneys, including those for work done in any other Court save the appellate side of the High Court.
It is argued on behalf of the appellants that assuming that the Taxing Master has jurisdiction to tax the bills in regard to the work done by the respondents in the City Civil Court, the bills cannot be taxed on the Original Side scale in view of the provisions contained ' in the Legal Practi tioners (Fees) Act, 21 of 1926.
We see no substance in this submission.
The statement of Objects and Reasons of the 1926 Act shows that the Act was passed in order to give effect to the recommendation of the Indian Bar Committee that in any case in which a legal practitioner has acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fees, Prior to the Passing of the Act of 1926, various High Courts in India had held almost consistently that Vakils could be.
sued for negli gence in the discharge of their professional duties and were entitled to sue for their fees but .Barristers could neither be sued for negligence nor could they sue for their fees.
The Indian Bar Committee recommended by paragraph 42 of its report that in practice the distinction relating to suing for negligence and being sued 359 for fees was not of great importance since suits by or against legal practitioners 'in respect .of fees and the conduct of cases were extremely rare; but it was necessary to provide that in any case in which a legal practitioner had 'acted ' or 'agreed to act ', he should be liable to be sued for negligence and be entitled to sue for his fees.
The long title of the Act of 1926 describes it as an Act "to define in certain cases the rights of legal practitioners to sue for their fees and their liabilities to be sued in respect of negligence in the discharge of their professional duties.
" The preamble of the Act is in the same terms.
Section 2(a) of the Act defines a 'legal practitioner ' to mean a legal practitioner as ' defined in section 3 of the according to which a 'legal practi tioner ' means "an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue Agent".
Section 3 of the Act of 1926 provides that any legal practitioner who acts or agrees to act for any person may by private agree ment settle with such person the terms of his engagement and the fee to be paid for his professional services.
Section 5 of the Act provides that no legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
Section 4 of the Act of 1926 which is the sheet anchor of Mr. Parekh 's argument reads thus: "4.
Right of legal practitioner to sue for fees.
Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner." ' In the first place, as explained above, the Act of 1926 was passed for an entirely different purpose with which we are not concerned in the present case.
Secondly, and that is more important, section 4 on which the appellants rely deals, as shown by its marginal note, with a limited ques tion viz., the right of a legal practitioner to sue for his fees.
It may be that since an Attorney is included within the meaning of the expression 'legal practitioner ', he will be governed by the provisions Contained in section 4 of the Act of 1926 if he brings a suit for the recovery of his fees.
But we are not concerned in this case to determine_ the scope and extent of an Attorney 's right to sue for his fees.
It must further be borne in mind that section 4, which iS in two parts, provides in the first place that a legal practitioner 'shall be entitled ' to institute and maintain a legal proceeding for the recovery of any fee due to him under an agreement.
This part of the section confers an additional entitlement on legal practitioners and cannot justifiably be construed as detracting from any other right which they may possess in regard to the taxation and re covery of their fees.
Section 4 provides by its second part that if there is no agreement between the legal 'practition er and his client in regard to the fees payable to him, he shall be entitled to institute and 360 maintain legal proceedings for the recovery of a fee comput ed in the manner provided therein.
This also is in the nature of an entitlement, the right recognised thereby being .the right to bring a suit to recover the fees in the absence of an agreement.
Any legal practitioner who wants to enforce the right which is specially created and con ferred by the Act of 1926 will have to comply with the conditions on which that right is conferred.
When a statute creates a special right, it can only be enforced in the manner and subject to the conditions prescribed by the statute.
Therefore, the fees for the recovery of which legal proceedings are brought under section 4 cannot be any.
larger than the fees computed in accordance with the law for the time being in force in regard to the ' computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.
But, as we have stated earlier, the provisions of the Act of 1926 are ,entirely beside the point.
They have no bearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in courts other than the High Court of Bombay and if so, on what scale.
The Bombay High Court in the judgment under appeal thought that there was an apparent conflict between section 4 of the Act of 1926 and the Original Side Rules relating to the taxation of an Attorney 's bill of costs.
We would like to make it clear that bearing in mind the true object and purpose for which the Act of 1926 was passed and the drive of section 4 thereof, there is no conflict, apparent or real, between any of the provisions of the Act of 1926 and the rules of taxation contained in the Original Side Rules of 1957.
In that view, it is unnecessary to resort to the principle of harmonious construction which the High Court alternatively relied upon for holding that the Taxing Master has the jurisdiction to tax the respondents ' bill in the instant case and on the Original Side scale.
Mr. Parekh then relied upon the rules framed by the Bombay High Court under section 224(1)(d) of the Government of India ACt, 1935 which corresponds roughly to article 227(3) of the Constitution and contended that the respondents ' bills must be taxed in accordance with those rules and not accord ing to the scale prescribed by the Original Side Rules.
This contention too is unacceptable.
The rules on which counsel relies were framed by the High Court "for fixing and regulating by taxation or otherwise the fees payable as Costs by any party in respect of the fees of his adversary 's Attorney appearing, acting and pleading upon all proceedings in the Bombay City Civil Court." These rules, according to their very terms, have nothing to do with the taxation of any Attorney 's bill of costs as between himself and his own client.
The rules govern the fees payable by way of costs by any party in the City Civil Court, in respect of the fees of his adversary 's Attorney.
That is to say, if an order of costs is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recov er from his adversary by way of professional charges in curred by him, the fees computed in accordance with the rules framed under section 224(1)(d) of the Government of India Act and not what he has in fact paid to his 361 Attorney.
Rule 9 on which 'counsel relies particularly, makes this position clear by providing: "9.
Where costs are awarded to a party in any proceeding ' the amount of the Attor ney 's fee to be taxed in the bill of costs is recoverable by such party if represented by an Attorney from the adversary and shall be computed in accordance with the rules above unless such fee has been settled under the provisions of section 3 of the Legal Practi tioner 's (Fees) Act, 1926, for a lesser amount in which case not more than such lesser amount shall be recoverable.
" The combined effect of this rule and section 4 of the Legal practitioners (Fees) Act, 1926 is that if an Attorney who has appeared or acted for his client in the City Civil Court sues his client for fees, he cannot recover in the suit anything more than is permissible under the rules framed by the High Court under section 224(1)(d) of the Government of India Act, 1933.
Neither those rules nor anything.
contained in the Act of 1926 is calculated to affect the Attorney 's right to have his bill taxed by the Taxing Master on the Original Side scale, for work done by the Attorney in the City Civil Court.
The Bombay City Civil Court Act, 69 of 1948, provides by section 18(1) that all suits and proceedings cognizable by the City Civil Court and ,pending in the High Court, in which issues have not been settled or evidence has not been re corded shall be transferred to the City Civil Court.
By section 18(2), costs incurred in the High Court till the date of the transfer of the suit are to be assessed by the City Civil Court in such manner as the State Government may after consultation with the High Court determine by rules.
Mr. Parekh.
drew our attention to rule 8 framed by the Government of Bombay under section 18(2) but we do not see its relevance on the issue under consideration in the instant case.
That rule shows that even as regards the fees of Attorneys, the Registrar of the City Civil Court is given the power to tax and allow all such costs and out of pocket expenses as shall have been properly incurred by an Attorney up to the date of the transfer of the suit.
The rule further provides that after the date of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are commensurate with the work done by the Advocate having regard to the scale of fees sanctioned for the Advocate in the City Civil Court by the High Court.
Rule 2, being a rule framed under section 18(2) of the Act of 1948, governs transferred, suits only and it expressly authorises the Registrar to tax the Attorney 's bill for the work done in such suits both before and after the transfer of the suit from the High Court to the City Civil Court.
There is no corresponding rule which can apply,to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948 came into force and in the absence of such rule, the rules framed under section 18(2) cannot 'support the appellants ' contention.
Mr. Parekh also drew our atten tion to the "Rules of the Bombay City Civil Court, 1948" framed by the Bombay High Court under section 224 of the Govern ment of India Act, 1935 but we see nothing 362 in those rules either which can assist his contention re garding the power of the Taxing Master to tax an Attorney 's bill as between himself and his client.
While we are on this aspect of the matter it would be useful to refer to the Supreme Court Rules, 1966 and the Bombay High Court Appellate Side Rules, 1960.
The Supreme Court ' Rules contain elaborate provisions in Order XLI and XLII thereof regarding costs of proceedings and taxation of costs.
Rule 13 of Order XLII provides that except as other wise provided in the rules or by any law for the time being in force, the fees set out in the Second and Fourth Sched ules to the Rules may be allowed to Advocates and officers of the Court respectively.
Rules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation.
The Second Schedule contains detailed provisions under which fees are payable to Advocates.
for various types of profes sional services rendered by them.
Similarly, Chapter 14 of the Appellate Side Rules of the Bombay High Court contains various rules for computing the fees which an Advocate is entitled to charge his own client.
Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 (see The Annual Practice 1965, p. 1998/300).
Mr. Natman who appears on behalf ' of the Incorporated Law Society, Bombay, drew our attention to rule 29 of the last mentioned rules under which a Solicitor 's bill can be taxed as between himself and his client.
These provisions are on a par with the rules of taxation of the Original Side of the Bombay High, Court.
The important point to be noted is that the Rules of the City Civil Court do not, except in regard to suits transferred from the High Court, contain any provi sion under which an Attorney can have, his bill taxed as between himself and his client.
Perhaps there is good reason for this because though under section 224(1)(d) of the Government of India Act, 1935 and article 227(3) of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has not been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter.
The High Court did exercise its powers under section 224(1)(d) in relation to the City Civil Court but did not in the rules framed in the exercise of that power provide for taxation of an Attorney 's bill of costs as between him and his client.
It is not too much to suppose that the High Court did not want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfac torily.
Mr. Parekh sought to derive some sustenance to his argument from a decision of the Calcutta High Court in Messrs Sander sons & Morgans vs Mohanlal Lalluchand Shah(1) but we find that the question which arose for decision therein was entirely different.
The appellants therein, a firm of Solicitors, submitted to the respondents a bill of costs for the work done by them for the respondents on the (1) A.I.R. 363 Original Side of the Calcutta High Court.
The respondents challenged the bill by a Chamber Summons, which the appel lants resisted on the ground that there was a private agree ment between the parties to pay a particular amount by way of fees and therefore the bill was not liable to be taxed under the Original Side Rules.
On a cosideration of the Original Side Rules of the Calcutta High Court, Particularly rules 4 and 74 of Chapter 36, the High Court came to the conclusion that the solicitors were bound to have their bills taxed according to the Original Side scale, agreement or no agreement.
We are concerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules.
We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of.
course ', .my principle of general application is laid down.
We have already mentioned that i.n Messrs Pereira Fa zalbhoy & Co. Mody J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court.
For the various reasons mentioned above we endorse that view.
Before concluding, we ought to refer to a rather anxious plea made by Mr. Parekh.
which involves ethical considera tions.
Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules.
We find ourselves unable to share this concern.
If anything, Solicitors are subject to the watchful supervision of the High Court wherever they may render professional services.
The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners.
The object on the contrary is to ensure that Attorneys shall always be subject.
to the juris diction of the High.
Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court.
The only exception is made by rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees 'as between an Advocate and his client.
In fact, we are unable to see why a power similar to the power of taxation of a. bill of costs between an Advocate and his.
client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court.
Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present.
In this very case, a. bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850/ only.
If there were no machin ery for taxing the bill, the appellants might perhaps have got off with the demand.
We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master ' must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court.
A judi cious exercise of 364 disecretion postulates elimination of unfair play, particu larly where one party to a transaction is in a position to dominate the will of the other.
The client must receive.the protection of the Court and its officers, whenever neces sary.
For these reasons we confirm the judgment of the High Court and dismiss the appeal.
There will however be no order as to costs.

summary:
Certain properties belonging to the appellants were attached by the City Civil Court in Bombay in execution of a decree.
The appellant engaged the respondent firm of Solicitors who by Vakalat executed in their favour by the appellants agreed to act, appear and plead for them in the City Civil Court.
The respondents took out three Chamber Summonses on behalf of the appellants for raising the at tachment.
Thereafter, they submitted three bills.
Since the bills remained unpaid, they obtained an order from the Prothonotary of the High Court directing the TaXing Master to tax the bills.
The appellants filed an appeal against the order of the Prothonotary which was dismissed by the Chamber Judge with liberty to the Taxing Master to decide whether the respondents were entitled to be remunerated on the original side scale of fees as between an attorney and client.
The Taxing Master rejected the appellants ' contention and taxed the respondents ' bills according to the scale of fees applicable on the original side by the High Court.
A Chamber Summons filed by the appellants before a Single Judge was dismissed.
An appeal before the Division Bench by the appellants also failed.
In an appeal by Special Leave the appellants contended: 1.
The Solicitors ' bill for cost and remuneration in respect of the work done by them in the City Civil Court cannot be taxed by the Taxing Master of the Original Side, High Court.
The bill in any event cannot be taxed according to the scale of fees applicable on the original side as between an attorney and client, particularly in view of the provisions contained in the Legal Practitioners Fees Act, 1926, Bombay City Civil Courts Act, 1948 and the Bombay City Civil Court Rules, 1948 as well and the rules framed by the Bombay High Court under section 2 24 ( 1 ) (d) under the Government of India Act, 19 3 5.
Dismissing the appeal, HELD: 1.
Rule 569 of the Rules of the High Court of Bombay (Original side) 1957, authorises the Taxing Master to tax the bills of cost on every side of the High Court except the Appellate side of the High Court and in the Insolvency Court.
All other bills of cost of attorneys shall also be taxed by him when he is directed to do so by a judge 's order.
There is no justification for the appellants ' con tention that "other bills of cost" must be construed to mean other bills of cost relating to matters on the original side of the High Court.
Rule 573 as amended prescribed a limitation of 5 years for lodging the bill of cost for taxation after the disposal of the suit or the proceedings in the High Court.
In respect of matters which are not the subject of any proceedings in the High Court the attorney has to lodge his bill of cost for taxation within 5 years from the completion of the matter.
The necessity for making this provision arose because rule 568 empowers the Taxing Master to tax the attorneys bill of cost in all matters except those on the Appellate side of the High Court.
The Bombay High Court, over a long Course of years has consist ently taken the view that the Taxing Master has Jurisdiction to tax attorneys bills of cost in relation 8 436SC1/77 352 to the professional services rendered by them whichever be the court in relation to which the services are rendered except the Appellate side of the High Court, in regard to which an exception has been expressly carved out by the rule.
[354 G H, 355 A G] Nowroji Fudumli Sirdar vs Kanga & Savani, 28 Born.
L.R. 384, Chitnis & Kanga vs Wamanrao section Mantri, and M/s. Pereta Fazalbhoy & Co. vs The Rajputana Cold Stor age & Refrigeration Ltd., approved.
The preamble and the statement of objects and reasons of the Legal Practitioners Fees Act 1926 shows that the Act was passed in order to give effect to the recommendations of the Indian Bar Committee that in any case in which a Legal Practitioner has acted or agreed to act he should be liable to be sued for negligence and be entitled to sue for his fees.
The Indian Bar Committee recommended by para 42 of its report that the distinction relating to suing for negligence and being sued for fees was not of great impor tance since suits by or against Legal Practitioners in re spect of fees and the conduct of cases were extremely rare.
But it was necessary to provide that in any case in which a Legal Practitioner had acted or agreed to act he should be liable to be sued for negligence and be entitled to sue for his fees.
The definition of Legal Practitioner in the 1926 Act is the same as in the (which includes an attorney).
Section 3 of the Act of 1926 provides that any Legal Practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and fees to be paid for his professional services.
Section 4 of the Act pro vides that any such Legal Practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement or if no such fee has been settled a fee computed in accordance with the law for the time being in force in regard to the computation of the cost to be awarded to a party in respect of the fee of his Legal Practitioner.
It may be that if an attorney institutes a suit he may be governed by section 4 but it really confers an additional right on the Legal Practitioner to institute a suit and cannot be construed as detracting from any other right which he may possess in regard to the taxation and recovery of his fees.
[358 G H, 359 A B, F H] 3.
The High Court was in error in observing that alterna tively there was an apparent conflict between section 4 of the 1926 Act and the original side rules relating to the taxation of an attorney 's bills of cost.
Bearing in mind the true object and purpose for which the 1926 Act was passed and the drive of section 4, there is no conflict, apparent or real between the 1926 Act and the High Court Rules of 1957.
[360 D E] 4.
The rules framed by the High Court under section 224(1)(d) of the 1935 Act, are rules for fixing and regulat ing the fees payable as costs by any ' party in respect of the fees of his adversary 's attorney.
These rules according to their very terms have nothing to do with the taxation of any attorney 's bill of cost as between himself and .his own client.
[360 F G] 5.
The combined effect of section 4 of the 1926 Act and the Rules framed by the High Court under section 224(1)(d) is that if an attorney who has appeared or acted for his client in the City Civil Court sues his client for fees he cannot recover in the suit anything more than what is per missible under the Rules framed by the High Court under section 224(1)(d).
However, that do not affect the right of an attorney to have his bill taxed by the Taxing Master on the original side scale.
[361 C D] 6.
Section 18(2) of the Bombay City Civil Courts Act.
1948 provides that in respect of suits transferred from the High Court to the City Civil Court costs incurred in the High Court till the date of the transfer of the suit are to be assessed by the city Civil Court in such manner as the State Government may after consultation with the High Court determine by rules.
Rule 2 framed under section/8(2) pro vides that even as regards the fees of attorneys the Regis trar of the City Civil Court is given the Vower to tax and allow all such costs and out of pocket expenses as shall have been properly incurred by an attorney upto the date of transfer of the suit.
The rule further provides that after the date 353 of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are commensurate with the work done by the advocate having regard to the scale of fees sanctioned for the advocates in the City Civil Courts Rules.
The said rule, applies only to transferred suits.
It has no application to the suits and proceedings instituted in the City Civil Court after 148.
[361 D H] M/s. Sandersons & Morgans vs Mohanlal Lalluchand Shah, A,I.R. distinguished.
The Taxing Master, however, before allowing the cost claimed by the attorney from his client must have regard to the fact that the attorney has appeared in a subordi nate court and to the scale of fees generally prevalent in that Court.
[363 G H] The Court observed that power similar to the power of taxation of a bill costs between the advocate and client which is found in Supreme Court Rules, 1966, should be conferred on appropriate officers of the Court subordinate to the High Court.
Such a power may enable the presiding Judge to control the professional ethics of the advocates appearing before them more effectively than is possible at present.
[362 A G]


judgement:
Appeal No. 1353 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 1 11 1974 of the Bombay High Court in Appeal No. 493 of 1966 from original Decree.) F.S. Nariman, B.R. Zaiawala, B.S. Bisaria, J.B. Dadac hanji, O.C. Mathut, K.J. John and Shri Narain, for the appellants.
P.H. Parekh and Miss Manju Jetely, for the respondent.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal by special leave is preferred by the Board of Trustees of the Port of Bombay against the judgment of the Bench of the Bombay High Court in first appeal confirming the decree passed by the City Civil Court and dismissing the appeal with costs.
The respondents, Indian Goods Supplying Co., a partnership firm in Bombay, filed suit No. 3304 of 1959 in the Bombay City Civil Court at Bombay praying for a decree against the Trustees of the Port of Bombay in the sum of Rs. 24,950 with interest.
Three consignments of Chinese newsprint were imported by the respondents for home consumption in India.
The first 2 consignments arrived on February 16, 1957.
Suffice it to say that the clearance of the two consignments as well as the third consignment 345 was considerably delayed and the Port Trust claimed demur rage for the period from March 25, 1957.
The respondents disputed the right of the Port Trust to charge any demurrage for the period during which the goods were detained by the Customs authorities for analytical test.
as well as for the Import Trade Control formalities.
It is common ground that so far as the period for analytical test certified by the Customs authorities is concerned the Port Trust cannot charge demurrage.
But so far as the period during which the goods were detained for the Import Trade Control formalities by the Customs authorities the Port Trust claimed demurrage.
Due to protracted correspondence between the parties the goods were not cleared and ultimately the suit was filed by the respondents for recovery of a sum of Rs. 24,950 and interest thereon from the Port Trust being the aggregate loss sustained by them.
The appellants denied that liabili ty and pleaded that the Port Trust.
was in law entitled to ' collect the demurrage levied on the respondents and that as they failed to pay the demurrage the Port Trust was entitled to sell the goods by public auction.
The City Civil Court, Bombay, decreed the suit for a sum of Rs. 24,950 with interest at the rate of 6 per cent per annum from the date of the suit till judgment and there after at 4 per cent per annum and costs of the suit.
The appellants preferred an appeal to a Division Bench of the Bombay High Court which dismissed the appeal and confirmed the decree passed by the City Civil Court.
When the appeal was pending before the High Court the appellants deposited the decretal amount in court which was withdrawn by the respondents.
Mr. Nariman, counsel for the Port Trust, stated that the Port Trust does not want to ask for the repayment of the money and that he will confine himself to the question of the correctness of the decision of the Bombay High Court holding that the Port Trust is not entitled to collect demurrage in the circumstances of this case.
It is therefore sufficient for the purposes of the appeal to confine ourselves to determining the question of law which has been raised before the High Court and decided by it.
The question that was raised before the High Court was whether the claim of demurrage by the Port Trust for the period during which the goods were detained with the Port Trust in respect of Import Trade Control formalities is maintainable.
The High Court held that the importer of the goods cannot be held responsible for any delay not at tributed to his own default and that the importer whose goods are detained by the Customs Department is entitled to claim the clearance of goods without demurrage during the period for which the Customs Department has detained them.
The appellants, the Board of Trustees of the Port of Bombay, is a statutory body constituted by the Bombay Port Trust Act, Act 6 of 1879, and is a body corporate.
Chapter VI of the Act relates to Revenue and Expenditure and pro vides for levy of rates.
Section 346 43 empowers the Board to frame a scale of tolls, dues, rents, rates and charges to be levied for each or any of the matters enumerated in clauses (a) to (d).
Sub section (a) enables framing of scale of rates relating to the landing, shipping, wharfage, cranage, storage or demurrage of goods.
We are concerned with the framing of the scale of rates for demurrage of goods.
Section 43B(1) requires that every scale framed by the Board shah be submitted to the Central Government for sanction and, when so sanctioned and pub lished in the Bombay Government Gazette, shall have the force of law; and subject to the like sanction and publica tion, may from time to time be amended or added to by the Board.
It is admitted that the Board framed a scale of rights for demurrage of goods and the scale so framed by the Board was submitted to the Central Government and was sanc tioned by the Central Government and published by the Bombay Government in the Gazette as required.
The result is that under section 43B(1 ) the scales so framed by the Board and approved by the Central Government shall have the force of law.
The learned counsel for the appellants as the Port Trust in this appeal have given up its claims to refund of the money taken by the respondents.
In view of this the counsel for the respondents confined his arguments to supporting the view taken by the High Court regarding the question of law.
He submitted that the Central Government had taken action under section 43B (IA) and had called upon the Board to modify the operation of such scales and therefore the Board was bound to modify the scales accordingly.
This conten tion is based on a D.O. letter dated 7th September, 1952 addressed by the Government of India to the Port Trust which is typed at page 350 of the Supplement Paper Book No. 2.
In the D.O. letter the Government expressed its view that it seems unreasonable to charge an importer any demurrage once it is accepted that clearance was delayed on account of the reasons beyond his control.
The letter concluded by expressing an earnest hope that the Bombay Port Trust will reconsider their decision and fall in line with the practice of the Calcutta and Madras Ports.
It concluded by stating "We shall be grateful if you will kindly place the matter before the Trustees for their favourable consideration and intimate to us the result.
" The Board considered this letter and after taking into consideration the several circumstances, suggested that demurrage may be levied on a graded scale.
The Government of India was informed of the Resolution of the Board and no further action was taken by the Government.
The D.O. letter addressed by the Government of India cannot be considered as a direction by the Central Government calling upon the Board to modify any portion of the scale framed by the Port Trust.
The language of the D.O. would indicate that the Government wanted the Port Trust to consider the Government 's proposal and nothing further.
The Port Trust considered the proposal and made its report.
We are unable to accept the plea of the learned counsel for the respondents that the D.O. letter should be construed as a direction calling upon the Board to modify the portion of the scale framed by the Board.
Section 43B(1A) has there fore no application to this case.
347 Chapter VII of the Port Trust Act enumerates the powers and functions of the Board.
It is the duty of the Board to recover the rates to have a lien on the goods and seize and detain the goods until such rates are fully paid.
The Board is empowered to sell the goods if rates are not paid or lien for freight is not discharged.
It can also dispose of goods not removed from the premises of the Board within the time limited.
Section 65 also provides the mode of application of proceeds of the sale.
Under section 66 the Board is entitled to distrain for non payment rates.
The Port clearance shall not be granted till the rates are paid.
It is thus a statutory duty of the Board to collect the rates prescribed.
The contention put forward on behalf of the respondents is that they are in no way responsible for the delay in clearing the goods as the goods had been detained under the Import Trade Control Regulations.
It is no doubt true that before clearance is given by the Import Trade Control authorities and the Customs Department the goods cannot be cleared by the respondents.
Neither can the Port Trust deliver the goods without the consent of the Import Trade Control authorities.
Taking into account the hardship caused to the importer because of the delay certain conces sions in demurrage rates are permitted.
The Port Trust has prescribed the reduced demurrage levy which is 1/6th of the normal rate from the date of expiry of the free days upto the 60th day, 1/3rd of the normal rate after the expiry of the 60th day, upto the 90th day, half the normal rate after the expiry of the 90th day upto the 120th day, 2/3rd of the normal rate after the expiry of the 120th day upto the 150th day and at the full rate after the expiry of the 150th day.
As the scale of rates are framed by virtue of the statutory powers conferred on the Board under section 43 and as the rates have been approved by the Central Government under section 43B the rates have the force of law and cannot be questioned.
Taking into account the hardship to the import ers certain concession has been given but the legality of the rates which are being levied according to law cannot be questioned.
This view was taken by this Court in a recent decision reported in Trustees the Port of Madras vs M/s. Aminchand Pyarelal & Ors.
(1) Where it had t6 consider the validity of the scale of rates fixed by the Madras Port Trust.
In a suit by the Port Trust against the importer and the Union of India and the Customs authorities to recov er the balance of demurrage amounting to about rupees three lakhs the question arose whether the scale of charges in the Port Trust Regulations under the heading "Demurrage" was void and ultra vires for the reason that it was unrea sonable and not within the authority of the Port Trust.
The relevant provisions of the Bombay Port Trust Act with which we are concerned are in pari materia with the provisions of the Madras Act which fell for consideration by the Supreme Court.
The Supreme Court held that the scale of rates and statement of conditions flamed by the Madras Port Trust under sections 42, 43 and 43A are not by laws (1) ; 348 and the sections confer authority on the Board to frame a scale of rates at which and a statement or conditions under which any of the services specified therein shall be per formed.
It observed "The Board 's power to frame a scale of rates and statement of conditions is not a regulatory power to order that something must be done or something may not be done.
The rates and conditions govern the basis on which the Board performs the services mentioned in sections 42, 43 and 43 A.
Those who desire to avail of the services of the Board are liable to pay for those services at prescribed rates and to perform the conditions framed in that behalf by the Board.
" The Court rejected the view of the High Court that demurrage being a charge for wilful failure to remove the goods within the free period can ' be levied only if the failure to remove the goods is due to the fault or negli gence of the importer or his agent.
It also did not agree with the view taken by the High Court that the authority given to the Board to frame the scale of rates can be exer cised only for the purpose of levying charges where the importer was not prevented by any lawful authority from clearing the goods from the transit area and he had default ed or was negligent in clearing the goods.
Justice Chandra chud, who spoke for the Court, observed in his judgment at page 736 supra that the statute had not placed any limita tion on the power of the Board to fix rates and as the Board had the power to frame a scale of rates at which and the statement of conditions under which any of the services specified in the section shall be performed and as the Board has fixed the scale of rates it was difficult to see in what manner or respect the Board has exceeded its power under section 42.
The Court proceeded to observe in rejecting the view of the High Court that the Board cannot fix rates of demurrage when the failure to remove was not due to some fault or negligence of the importer, that there is no such fetter on the Board 's powers to fix the rates.
This deci sion of the Supreme Court is on all fours with the facts of the present case and concludes the question.
Mr. Nariman, counsel for the appellants cited three deci sions of the English Courts in support of his contention that even on the basis of a contract the right of the Port Trust to recover demurrage cannot be denied unless the person claiming the demurrage is responsible for the delay.
In Aktieselskabet Reidar vs Arcos, Limited (1), Lord Justice Atkin in answering the question whether if the chatterer has failed to complete the loading of the ship within the lay days, and the ship during the demurrage days becomes, without the default of the shipowner, unable to carry as much cargo as she would have carried if loaded within the lay days, but receives from the charterer a full cargo for her diminished capacity, the loss falls upon the charterer in addition to the demurrage, expressed his opin ion that the decision should be for the shipowner.
It was held that "The result of the authorities appears to be that in a contract fixing a number of lay days and providing for days at demurrage thereafter, the charterer enters into a binding obligation to load a complete cargo within the lay days subject to any default by the shipowner or to the operation (1) 349 of any exceptions, matters which do not arise in this case .
If however, for reasons other than the shipown er 's default, the chatterer becomes unable to do that which he contracted to do namely, put a full and complete cargo on board during the fixed laydays, the breach is never repaired, the damages are not completely mitigated, and the shipowner may recover the loss that he has incurred in addition to his liquidated demurrage or his unliquidated damages for detention.
" Thus it appears clear that claim of demurrage cannot be resisted unless where the detention was due to the shipowner 's default.
In the present case the Port Trust 's claim for demurrage cannot be denied unless it is proved that the delay was due to the Port Trust itself.
In Budgett & Co. vs Binnington & Co., (1) a clause in the charterparty fixed the number of lay days for unloading and allowed other days for demurrage.
During the lay days a strike took place both among the labourers employed on behalf of the ship and those employed by the consignees, with the result that the unloading ceased, and could not be resumed till some days after the expiration of the lay days.
The Court of Appeal held that as the number of lay days was fixed the consignees were liable to pay demurrage, notwith standing the inability of the shipowners, owing to the strike, to do their part in the unloading.
The test that was laid down by Lord Esher Master of the Rolls, was.
Has the shipowner failed in his duty through any default of his own or of persons for whom he is responsible ? As the non delivery was occasioned by something which the shipowner could not foresee or by the act of persons over whom he had any control it was held that he was not liable.
In Compania Crystal De Vapores of Panama vs Herman & Mohatta (India) Ltd., (2) Justice Devlin quoted with approv al the law laid down by Lord Esher in Budgert Co. vs Bin nington & Co. (supra) which is in the following terms : "If the shipowner by any act of his has prevented the discharge, then, `though the freighter 's contract is broken, he is ex cused ', he was referring to a case in which the shinowner 's act preventing the discharge was in breach of his obligation to give the charterer all facilities for the discharge.
But here the act of the shipowner which de layed the discharge was not a breach of any obligation of his.
" The position therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rates imposed are under the authority of law the validity of which cannot be questioned.
The claim cannot be resisted as there is no evidence that the delay was due to any act of the Port Trust or persons for whom the Port Trust is responsible.
(1) [1891] 1 Q.B.p. 35.
(2) [2953] 2 ALl.
E.R. 508.
350 One other contention which was raised before the High Court but was not dealt with by it may be referred to.
It was submitted on behalf of the respondents that the defini tion of the words "free days" would not include the period of holidays or part of a holiday or Sunday in computing the number of free days during which the Customs Duty may not be assessed or received and therefore the period of detention of the goods during the operation of Import Trade Control formalities must be considered as free days.
In the scale of rates charged at the docks framed by the Bombay Port Trust under sections 43.
43A and 43B of the Bombay Port Trust Act, 1879, in Section III reference is made to free days.
Under the heading "Free Days" it is provided that all goods will be allowed storage in Docks free of rent for 5 days.
It is further provided that in computing the number of free days Sundays and holidays referred to in by law 118 as well as any other days on which Customs Duty may not be assessed or received, will be omitted in the case of all goods liable to duty under section 20 of the Sea Customs Act.
The submission was that not only Sunday and holidays should be omitted but also other days on which Customs Duty may not be assessed or received will have to be omitted and this should be understood as days during which the Import Trade Control formalities could not be completed.
This contention cannot be accepted as these Rules are in tended only to omit Sundays, other holidays and days on which the assessment of Customs Duty cannot be taken up and would not include the entire period during which the Import Trade Control formalities have not been completed.
The High Court was therefore in error in holding that the importer of the goods cannot be held responsible for any delay not attributable to his own default and that demurrage under section 43A could never be imposed as long as the goods were detained for the purpose of the operation of the Import Trade Control Regulations.
In the result the appeal is allowed but due to the concession made by the learned counsel for the Port Trust there will be no order directing the refund of the money that had already been deposited by the Port Trust and withdrawn by the respond ents.
The appellant also does not press his counter claim.
There will be no order as to costs in this appeal.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant, a statutory body framed the scales of rates of demurrage of goods under section 43 (a) of the Bombay 'Port Trust Act 1879 which was sanctioned by the Central Government.
Later on the Central Government in its D.O. letter dated 7th September 1952 addressed to the appel lant expressed its view that it seems unreasonable to charge an importer any demurrage once it is accepted that clearance was delayed on account of the reasons beyond his control.
It also expressed its hope that the appellant would recon sider its decision and fall in line with the practice of the Calcutta and Madras Ports.
The Port considered this letter and after taking into consideration the several circum stances suggested that demurrage may be levied on a graded scale and the Central Government did not take any further action.
In fact, the appellant has prescribed reduced demurrage levy from the expiry of the free days.
In respect of the three consignments of Chinese news print imported by the respondent for home consumption in India, the appellant claimed demurrage for the period from March 25, 1957 and as the amount was not paid the goods were sold in public auction.
The respondent thereafter filed a suit for recovery of a sum of Rs. 24,950/ and interest thereon from the appellant being the aggregate loss sus tained by it.
The appellant denied that liability and pleaded that it was, in law, entitled to collect the demur rage levied on the respondent and as it failed to pay the demurrage, the appellant was entitled to sell the goods by auction.
The City Civil Court, Bombay decreed the suit with interest at 6 per cent per annum from the date of the suit till judgment and thereafter at 4 per cent per annum and costs of the suit.
The appeal preferred by the appellant to the High Court failed and the decree stood confirmed.
The decretal amount deposited in the High Court during the pendency of the appeal was withdrawn by the respondent.
Allowing the appeal by Special leave the Court, HELD: (1) The High Court was in error in holding that the importer of the goods cannot be held responsible for any delay not attributable to his own default and that demur rage under section 43(a) could never be imposed as long as the goods were detained for the purpose of the operation of the Import Trade Control regulations.
[350 E] (2) The D.O. letter addressed by the Government of India should not be construed as a direction calling upon the Board to modify any portion of the scale framed by the Port Trust.
The language of the D.O. would indicate that the Government wanted the Port Trust to consider the Govern ment 's proposal and nothing further.
The Port Trust consid ered the proposal and made its report.
Section 43B(1A) has no application to this case.
[346 F H] (3) It is no doubt true that before clearance is given by the Import.
Trade Control Authorities and the Customs Authorities, the goods cannot be cleared by the importer.
Neither can the Port Trust deliver the goods without the consent of the Import Trade Control Authorities.
Taking into account the hardship caused to the importer because of the delay certain concessions in demurrage rates are per mitted.
As the scales of rates are permitted by virtue of the statutory 344 powers conferred on the Board under section 43 and as the rates have been approved by the Central Government under section 43B, the rates have the force of law and cannot be questioned.
Taking into account the hardship to the importers certain concession has been given but the legality of the rate which are being levied according to law cannot also be questioned.
[347 C D; E F] Trustees of the Port of Madras vs M/s Aminchand Pyarelal & Ors.
[1976].
SCR 721.
followed.
(4) Even though the delay in clearing the goods was not due to the negligence of the importer for which he should be held responsible yet he cannot avoid the payment of demurrage as the rates imposed are under the authority of law, the validity of which cannot be questioned, In the instant case the claim of the appellant cannot be resisted as there is no evidence that the delay was due to any act of the Port Trust or persons for whom the Port Trust is respon sible.
[349 G H] Aktieselskabet Reidar vs Arcos, Limited [1927] 1 K.B. 352;Budgett & Co. vs Bippington & Co. [1891] 1 Q.B.p. 35 and Compania Crystal De Vapores of Panama vs Herman & Mohatta (India) Ltd. , quoted with approval.
(5) Section 43, 43A and 43B of the Bombay Port Trust Act 1891 which make reference to "free days" are intended only to omit Sundays, other holidays or on which the assessment of customs duty cannot be taken up and would not include the entire period during which the Import Trade Control formali ties have not been completed.
[350 C D] (6) Under the powers vested in the Board, it is its statutory duty to collect the rates, to have a lien on the goods and seize and detain the goods until such rates are fully paid.
The Board is empowered to sell the goods if rates are not paid or lien for freight is not discharged or when the goods are not removed from its premises within the limited time.
[347 A B]


judgement:
Appeal No. 686 of 1976.
(Appeal by Special leave from the Judgment and Order dated 13 2 1976 of,the Punjab and Haryana High Court in R.S.A. No. 249 of 1976).
P.P. Juneja, for the appellants.
S.K. Mehta, K.R. Nagaraja and P.N. Puri, for respondent No. 1 The Judgment of the Court was delivered by CHANDRACHUD, J.
(1) One Mula executed a registered gift deed in favour of appellant No. 13, Bhagwati Devi, on December 3, 1964.
On April 29, 1965, appellants 1 to '12 claiming to be potential reversioners filed Suit No. 143 of 1965 against the donor and the donee for a declaration that under the Punjab Custom (Power to Contest) Act, 1920, the gift deed was not binding on them.
The suit was decreed by the trial court on May 31, 1966 and that decree was con firmed in appeal on October 16, 1967.
(2) In between, on July 10, 1966 Mula adopted the re spondent.
On March 11, 1970, appellant No. 13 executed in favour of appellants 1 to 12 a lease in respect of the property which was the subject matter of the. gift.
Mula died on August 28, 1971.
(3) On December 13, 1971 respondent filed the present suit against the appellants for possession of certain properties including the property which Mula had gifted to appellant No. 13.
The suit was decreed by the trial court on January 29, 1971 and the decree was confirmed in appeal by the District Court and the High Court.
(4) On June 3, 1976 appellants filed a special leave petition in this Court challenging the High Court judgment.
They raised, inter alia, a new contention (ground No. B) that in decreeing the suit, the courts below had overlooked the relevant provisions of the Punjab Customs (Power to Contest).
Amendment Act of 1973, by virtue of which the legality of the gift made by Mula in favour of Bhagwati Devi could not be contested.
On June 11, 1976 this Court granted special leave to the appellants limited to the aforesaid Ground (B) of the special leave petition.
(5) We have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, be accepted.
The contention, sought to be raised for the first time by the learned counsel, is founded on the assumption that by reason of the Amendment Act of 1973, the gift deed executed by Mula cannot be challenged by the respondent.
The assumption on which the argument is founded is fallacious, because the respondent does not seek by his plaint, as indeed he need not have sought, to chal lenge the gift deed executed by Mula in favour of Bhagwati Devi.
That gift was challenged by appellants 1 367 to 12 in Suit No. 143 of 1965, and they succeeded in obtain ing a declaration in that suit that the gift was not binding on the reversioners.
That decree became final, with the result that as on August 28, 1971, when Mula died, the property which he had sought to gift away to Bhagwati Devi, was free from the encumbrance of the purported gift.
By the present suit, the respondent merely asks for possession of the property in respect of which Mula had executed the deed of gift.
The basis on which he has asked for that relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in Suit No. 143 of 1965.
It seems to us plain that he has not and he need not have contested the validity of the gift deed since that question was decided finally in the aforesaid suit.
(6) Section 7 of the Punjab Custom .(Power to Con test) Act, 1920 provided initially that no person shall contest any alienation of non ancestral immovable property on the ground that such alienation is contrary to custom.
This section was amended by section 3 of the Punjab Custom (Power to Contest) Amendment Act, 12 of 1973, as a result of which no challenge could be made to the alienation of any immovable property, whether ancestral or non ancestral, on the ground that it is contrary to custom.
It is, therefore, true that if it became necessary after the Amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, section 7 of the Act of 1920 would operate as a bar to such a contest.
However, as we have stated earlier, it was not necessary for the respondent, in view of the decree passed in suit No. 143 of 1965, to contest the valid ity of the gift.
(7) The decision of this Court in Giani Ram vs Ramji Lal(1) may, with advantage be referred to on this point.
Under the customary law of the Punjab, the wife and daugh ters of a holder of ancestral property could not sue to obtain a declaration that the allegation of ancestral property will not bind the reversioners after the death of the alienor.
But the reversioner who was entitled to chal lenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienor 's death.
It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore all persons, including the wife and the daughters of the de ceased, were entitled to the benefit of that restoration.
Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daugh ters, who also became heirs along with the sons under the were held entitled to obtain possession of the ancestral property.
Mr. Juneja attempted to get over the effect of this decision by invoking the provisions of section 8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to.
custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation.
Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot ensure for his benefit.
The short answer (1) ; 9 436 SCI/77 368 to this contention is that the decree would ensure for the benefit of all persons who are enitled to a share in the property of the deceased as it existed at the moment of his death.
Since Mula 's property stood freed from the encum brance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the gifted property.
(8) Another facet of the same question can be seen in Chand Singh vs Ind Kaur.(1) A learned Single JUdge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of 1973, a declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree a nullity.
(9) There is thus no substance in the contention raised by the appellants and their appeal must fail.
Appellants 1 to 12 shall pay the respondent 's 'costs of the appeal.
S.R. Appeal dismissed.

summary:
section 7 of the Punjab Customs (Power to Contest) Act, 1920 provided that no person shall contest any alienation of non ancestral immovable property on the ground that such alienation is contrary to custom.
section 3 of the Amendment Act 12 of 1973 amended section 7 with the .result that no challenge could be made to the alienation of any immovable property, whether ancestral or non ancestral, on the ground that it is contrary to custom.
A gift deed was executed by one Mula, in favour of appellant No. 13 Bhagwati Deyi, on December 3, 1964.
Appel lants 1 to 12 claiming to be potential reversioners obtained a decree on May 31, 1966 in a suit flied against the donor and the donee for a declaration that under the Punjab Cus toms (Power to Contest) Act Z of 1920 the gift deed was not binding on them and that decree was confirmed in appeal on October 16, 1967.
On July 10, 1966, Mula adopted the re spondent.
On March 11, 1970 appellant No. 13 executed in favour of appellants 1 to 12,, a lease in respect of the property which was the subject matter of the gift.
Mula died on August 23, 1971.
On December 13, 1971, respondent filed a suit for possession of certain properties including the property which Mula had gifted to appellant No. 13.
The suit was decreed on January 20, 1971 and that decree was confirmed in appeal by the District Court and the High Court.
In appeal by special leave.
, the appellants contended (i) In decreeing the suit the Courts below had over looked the relevant provisions of the Punjab Customs (Power to Contest) Amendment Act, 1973 by virtue of which the legali ty of the gift made by Mula to appellant No. 13 could not be contested and (ii) since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit, under section 8 of the Punjab Limitation (Custom) Act, of 1920.
Dismissing the appeal, the Court HELD: (1 ) That a declaratory decree obtained under the Punjab Customs (Power to Contest) Act by a reversioner to the effect that an alienation would not bind them after the.
alienor 's death, had the effect of restoring the property alienated to the estate of the alienor and therefore, all persons who are heirs to the deceased were entitled to obtain possession of the alienated property.
[367 E F] (ii) The decree obtained by appellants 1 to 12 on May 31, 1966 would enure for the benefit of all persons who are entitled to a share in the property of the.
deceased as it existed at the moment of his death.
Since Mula 's property stood freed from the encumbrance of the, gift at the moment of his death, respondent as the adopted son would be en tiled to the possession of the gifted property.
[367 H, 368 A] Giani Ram vs Ramji Lal ; , relied on to; Chand Singh vs bid Kaur approved.
(iii) It is true that, if it became necessary after the amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, section 7 of the Act of 1920 would operate as a bar to such a contest.
But in the instant case, the basis on which the respondent has asked for the relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in suit No. 143/1965.
He has not and indeed he need not have contested the validity of the gift deed since the question was decided finally in the aforesaid suit.
[367 B D] 366


judgement:
Civil Appeal No. 2150 of 1968.
(Appeal by Special Leave from the Judgment and Order dated 5.9.1968 of the Punjab & Haryana High Court in L.P.A. No. 458/68).
V.C. Mahajan, Hardev Singh and R.S. Sodhi, for the appel lant.
O.P. Sharma, for the respondents 1 and 2.
K.R. Nagaraja and P.N. Puri, for respondent No. 3.
The Judgment of the Court was delivered by BEG, C.J.
This appeal under Article 136 of the Consti tution is directed against a very detailed Judgment of the Punjab & Haryana High Court on a Writ Petition No. 1875 of 1965 filed under Articles 226 and 227 of the Constitution, assailing an order of the Additional Director, Consolidation of Holdings, passed on 8 June, 1965.
A perusal of that order, together with the earlier order of 4 May, 1965, and the application for restoration dated 15 May, 1965, filed by Gurdev Singh, respondent No. 3, shows: Gurdev Singh, who had 370 some complaint against the Consolidation Scheme, was not present so that his petition was ordered to be filed by the Additional Director, Consolidation on 4 May, 1965.
Gurdev Singh, soon thereafter i.e. on 15 May, 1965, filed an appli cation for restoration supported by an affidavit, attribut ing his absence on 4 May, 1965, to his illness.
The. order dated 8 June, 1965, of the Additional Director, shows that the applicant Gurdev Singh 's assertion that he could not attend due to illness, over which he had no control, was accepted by the Additional Director, who proceeded to exer cise his powers under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) and to set right the grievance of the applicant, Gurdev Singh, after going into all the relevant records.
The learned Judge of the High Court, who heard the petition also went through the records very carefully, came to the conclusion that an assertion of rights by the petitioner/ appellant, a member of the Sanjam Group, merely because of some report contained in the "Fard Badar," could not take away the effect of entries in the revenue records.
The learned Judge held that no injustice was caused to the petitioner/appellant also, there was no ground for interference under Article 226 of the Constitu tion.
The learned counsel for the appellant has relied upon the case of Harbhajan Singh vs Karam Singh& Ors.
reported in ; , where this Court held that the Addl.
Director exercising the powers of the State Government has no jurisdiction under section 42 of the Act to review his previous order.
Section 42 of the Act runs as follows: "The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto.
as it thinks fit: Provided that no order or scheme or repar tition shall be varied or reserved without giving the parties interested notice to appear and opportunity to.
be heard except in case where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration.
" The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42.
The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportu nity of being ,heard due to his illness, seems to us to amount to a finding that the proviso.
could not be complied with so that the previous order could not be held to be an order duly passed under Section 42 of the Act.
It could be ignored as "non est.
" The view taken in Harbhajan Singh 's case (supra) would not apply to the 371 instant case although Section 42 of the Act does not contain a power of review.
Orders which are 'non est ' can be ignored at any stage.
On the facts and circumstances of this case, we think that this is not a fit case for interference under Article 136 of the Constitution.
The appellant, if he has acquired any rights by reason of long possession, can assert them whenever any proceedings are taken before a competent au thority to dispossess him.
What we have held here or whatever has been held by the High Court will not affect such other rights, if any, as the Appellant may have ac quired by reason of possession.
We do not know and refrain from deciding who is actually in possession and for how long and in what capacity.
This appeal is dismissed.
Parties will bear their own costs.
_ P.H.P. Appeal dismissed.

summary:
Gurdev Singh had certain complaints about the Consolida tion Scheme.
He was not present when his application was being considered.
Therefore, the application was dis missed by the Additional Director, Consolidation.
Thereaf ter, Gurdev Singh respondent No. 3 filed an application for restoration supported by an affidavit attributing his ab sence to his illness.
The Additional Director accepted the ground of respondent No. 3 about illness and granted necessary relief to him.
The appellant filed a writ.peti tion in the High Court under Articles 226 and 227 of the Constitution.
The High Court held that the assertion of rights by the appellant merely because of some report con tained in the "Fard Badar" could not take away the effect of the entries in the revenue records The High Court also held that no injustice was caused to the appellant and, there fore, there was no ground for interference under Article 226.
In an appeal by Special Leave, the appellant contended that the Additional Director had no power to review his previous order.
The power to review conferred by section 42 of the Act has to be exercised only after hearing the interested parties.
Since respondent No. 3 was not given an opportunity of being heard on account of his illness, it shows that the order passed was non est and can be ignored at any stage.
The court dismissed the appeal on the ground that this was not a fit case for interference under Article 136.
the Court, however, observed that if the appellant has any right on account of long possession or otherwise he can assert them by adopting proper proceedings and that his rights would not be affected by whatever is stated m the Judgment of this Court as well as the High Court.


judgement:
Civil Appeal No. 974 of 1975.
(Appeal by Special Leave from the Judgment and Order dated 25 6 1975 of the Gujarat High Court in Spl.
Civil Appln.
No. 1223/74).
D.V. Patel and S.S. Khanduja, for the Appellant.
885 U.R. Lalit, P.H. Parekh and Miss Manju jatley, for Respondent No. 1.
M.N. Shroff, for Respondent No. 2.
The Judgment of the Court was delivered by GUPTA, J.
The appellant was elected a councillor of Anjar municipality in Kutch District sometime in 1972, and later, President of the municipality.
On June 30, 1973, after he had been elected President, the appellant applied to the chief officer of the municipality for allotting to him a 'plot of land admeasuring 18 feet x 16 feet situate in the town of Anjar.
In his application the appellant stated that he wanted the plot for running a flour mill temporarily until he got a suitable plot from the Govern ment.
By his order dated July 5, 1973 the chief officer granted the request permitting the appellant to hold the land on payment of rent on condition, inter alia, that the land should be vacated whenever 'the municipality so or dered.
The first respondent who is a resident of Anjar applied to the Collector of Kutch under section 38 of the Gujarat Municipalities Act, 1963 (referred to as the Act hereinafter) for declaring that appellant 's office has "become vacant" as he has disabled himself from continuing as a councillor by taking lease of the land from the munici pality.
The Collector having heard the parties held that the appellant had got the land by misusing his position as President of the municipality incurring thereby the disqual ification referred to in section 38(1)(b)(i) of the Act which disabled him from continuing to be a councillor and declared that his office had become vacant.
The appellant before us preferred an appeal under section 38(4) of the Act to the State Government against the Collector 's order.
The State Government allowed the appeal and dismissed the application of the first respondent.
It was held that the land was allotted to the appellant in accordance with the by laws of the municipality and that there was no evidence of the appellant exerting any influence on the chief offi cer.
The first respondent challenged the order of the State Government by filing a writ petition in the Gujarat High Court.
The learned Judge of the High Court who heard the petition allowed the same, quashed the order of the State Government, and restored the order made by the Collector.
This appeal by special leave is directed against the judg ment of the High Court allowing the writ petition.
The appeal turns on section 38(1)(b)(i) of the Act which reads as follows: "38.
Disablilties from continuing as a councillor.
(1) If any councillor during the term for which he has been elected or nomi nated (a) x x x (b) acts as a councillor in any matter (i) in which he has directly or indirectly, by himself or his partner, any such share or interest as is de:scribed in clause (i), (ii), (iii), (v) or (vii) of sub section 886 (3) of section 11, whatever may be the value of such share or interest, or . . . . . he shall subject to the provisions of sub section (2) be disabled from continuing to be a councillor and 'his office shall become vacant.
" The provisions of sub section (2) are not relevant for the present purpose.
Section 11 of the Act enumerates, inter alia, the "gener al disqualifications for becoming a council lor" and specifies the cases to be treated as exceptions.
Section 11(2)(c) disqualifies a person from being a councillor "who, save as hereinafter provided, has directly, or indi rectly, by himself or his partner any share or interest in any work done by order of a munic ipality or in any contract or employment with or under or on behalf of a municipality '.
Sub section 3(A)(i) of section 11 which con tains an exception to this rule provides: "(3) A person shall not be deemed to have incurred disqualification (A) under clause (c) of sub section (2) by reason of his (i) having any share or interest in any lease, sale or purchase ;of any immovable property or in any agreement for the same." Thus a person is disqualified from becoming a councillor if he. has a direct or indirect interest in any contract with the municipality, but having any share or interest in any lease of immovable property or in any agreement for the same is not a disqualification.
Section 38(1)(b) (1),quoted above however provides that if any councillor during the term for which he has been elected "acts as a councillor" in acquiring a direct or indirect share or interest in any lease, he shall be disabled from continuing to be a council lor.
We have noted earlier that section 11(3)(A)(i) is an exception to.
the general disquali fication under section 11(2) (c), section 38(1) (b) (i) appears to be an exception to that exception.
This means that though having an inter est in any lease from municipality is not a disqualification for becoming or continuing as a councillor, if the council lor "acts as a councillor" in getting such lease from the municipality, he shall be 'disabled from continuing to be a councillor.
The president of the municipality being a council, lot, this provision also applies to him.
The ques tion therefore is whether the appellant in this case acted as a councillor in the matter of allotment of the land to him.
Section 275 of the Act authorises the municipality to make bylaws not inconsistent with the Act.
The Anjar municipality has framed by laws regulating the conditions on which permission may be given for the temporary occupa tion of public streets or land.
An English translation of by law 4 of these by laws which are in Gujarati reads: "Permission will be given for the, use of public road or land within the municipal limits but not of private land for temporary period for the matters mentioned in Schedule 1 hereto on advance payment of fee as stated in the Schedule.
887 Any person who intends to occupy such land shall have to make a written application to the chief officer.
But to give such permis sion or not shall be within the absolute discretion of the chief officer.
" Schedule 1 mentioned here prescribes the fees payable by the applicant on such permission being granted.
The chief officer in this case permitted the appellant to occupy the land in question in exercise of the power given to him by this by law.
The High Court found that the appellant acted as a councillor and President of the municipality in having the plot allotted to him mainly upon the provisions of sections 49 and 45 of the Act.
Section 49 defines the power and duties of the chief officer.
Sub section (1)(a) of 'sec tion 49 which is relevant in this context is as follows: "49.
Power and duties of chief officer. (1) The chief officer shall (a) subject to the general control of the president watch over the financial and executive administration of the municipality and perform all the duties and exercise all the powers specifically imposed or conferred upon him by, or delegated to him under, this Act.
" Section 45 enumerates the functions of the President; one of the functions is to exercise supervision and control over the acts and proceedings of all officers and servants of the municipality in matters of executive administration.
The High Court after referring to these provisions observed that the chief officer being under the general control of the president in all matters of executive ,administration, must have felt himself bound to grant the appellant s applica tion.
The High Court referred to an earlier application for the plot made by one Karan Kanji which the chief officer had rejected.
There is also a finding that by law 4 did not permit the use of the plot for the purpose for which the appellant had applied and that the chief officer went out of his way to help his president.
The High Court concluded that if the appellant had not been a councillor of the municipality and its president, his application would have met with the same fate as Karan Kanji 'section The legality of the chief officer 's order is not however an issue in this case, and the question whether or not the intended use of the plot by the appellant was beyond the scope of by law 4 need not detain us.
According to the High Court it was only because the appellant held the office of president 'of the municipality that the chief officer allowed his application.
This may or may not be true, but it is not a matter relevant to the real question that arises for consideration in this case.
Section 38(1)(b)(i) disables a councillor from continuing as such if he "acts as a councillor" in the matter of allotment of any land to himself, there is no bar in the Act to a coun cillor getting a lease of the land from the municipality as would appear from section 11(3)(A)(i).
It is only in a case where he acts as a councillor in getting the lease that he is disqualified.
There is nothing in the record of this case to show that the appellant had acted as a councillor to have the plot allotted to him 888 self. 'Even if the chief officer was influenced by the fact that the applicant before him was president of the munici pality, that would not attract section 38(1)(b)(i).
It is true that section 45 confers a general power of supervision and control on the president over the acts of all officers of the municipality and section 49, which enumerates the power and duties of chief officer, also makes him subject to the general control of the president in the discharge of these powers.
But the general power of supervision con ferred on the president does not, in our opinion,imply that in every case where he applies for a lease, which he is entitled to do as section 11(3)(A) (i) indicates, he should be deemed to have "acted" within the meaning of section 38(1)(b), otherwise, the president of a municipality under this Act, by virtue of his office would be disentitled altogether from applying for permission to use any land of the municipality.
If this were the correct position then there was no point in limiting the disqualification contemplated in section 38(1) (b) (i) to cases where the councillor acts as a councillor.
The words "acts as a councillor" cannot be treated as redundant.
In our view the councillor acts as a councillor within the 'meaning of section 38(1)(b) when he performs any of the functions which under the Act he is required to perform.
An allegation of misuse of his position against a councillor would not at tract the disability under section 38(1) (b)(i) unless it was shown furher that he has acted as a councillor in the matter.
In view of the clear provision of section 38(1)(b)(i) we do not find it possible to support the im pugned judgment.
The appeal is therefore allowed and the judgment of the High Court reversing the decision of the State Government is set aside.
In the circumstances of the case we make no order as to costs.
P.B.R. Appeal allowed.

summary:
Under section 38(1)(b)(i) of the Gujarat Municipalities Act, 1963, if a councillor.
during the term for which he has been elected or nominated, acts as a councillor in any matter in which he has directly or indirectly any share or interest, he shall, subject to the provisions of sub section 2, be disabled from continuing to be a councillor and his office shall become vacant.
While functioning as President of a municipality the appellant obtained a plot of land within the municipality for running a mill.
The Chief Officer who was the authority to grant such permission permitted the appellant to hold the plot on certain conditions.
The High Court in writ petition by the respondent held that the appellant was disqualified from continuing President of the municipality.
Allowing the appeal to this Court, HELD: (1) Section 38(1)(b)(i) disables a councillor from continuing as such if he, "acts as a councillor" in the matter of allotment of any land to himself; there is no bar in the Act to a councillor getting a lease of the land from the municipality as would appear from section 11(3)(A)(i).
It is only in a case where he acts as a councillor in getting the lease that he is disqualified.
There is nothing on the record to show that the appellant had acted as a councillor to have the plot allotted to himself.
[887 H] (2) Whether or not the Chief Officer was influenced by the fact that the applicant before him was President of the municipality, was not relevant to the question whether section 38(1)(b)(i) was attracted.
[888 A] (3) The general power of supervision conferred on the Presi dent does not imply that in every case where he applied for a lease, which he is entitled to do as section 11(3)(A)(i) indi cates, he should be deemed to have 'acted ' within the mean ing of section 38(1)(b)(i); otherwise the President of a munici pality under the Act, by virtue of his office would be disentitled altogether from applying for permission to use any land of the municipality.
If this were the correct position then there was no point in limiting the disqualifi cation contemplated in section 38(1)(b)(i) to cases where the councillor acts as a councillor.
The words 'acts as a councillor ' cannot be treated as redundant.
The councillor acts as a councillor within the meaning of section 38(1)(b)(i) when he performs any of the functions, which, under the Act, he is required to perform.
An allegation of misuse of his position against a councillor would not attract the disabil ity unders.
38(1)(b)(i) unless it was shown further that he has acted as a councillor in the matter.
[888 B D]