PETITIONER:
VELJI LAKSHMI & CO. ETC.
Vs.
RESPONDENT:
BENETT COLEMAN & CO. ETC.
DATE OF JUDGMENT14/04/1977
BENCH:
SINGH, JASWANT
SARKARIA, RANJIT SINGH
CITATION:
1977 AIR 1884 1977 SCR (3) 603
1977 SCC (3) 160
ACT
Bombay Municipal Corporation Act, 1888--Respondents
given permission to raise temporary structures on land on
condition that they should be pulled down when called upon
to do so---Premises let out to appellant--Municipal Commis-
sioner directed respondents to pull down the structures to
implement Town Planning Scheme--Commissioner, if competent
to order demolition.
Interpretation: Rights and obligations acquired under a
temporary Act--survive after expiry of the Act.
HEADNOTE
Respondent No. 1 constructed some godowns on the plot of
land leased out to them by the Bombay Port Trust in 1933.
As a result of explosions in 1944, some of the buildings in
the area were destroyed. In order that the building con-
struction work in the area might be carried out on modern
lines, the Bombay Municipal Corporation formulated a scheme
under the provisions of the Bombay Town Planning Act, 1915
to restrain the owners of the land from re-constructing in a
haphazard manner in the devastated area. The Governor of
Bombay by a proclamation issued under s. 93 of the Govern-
ment of India Act. 1935, enacted the City of Bombay (Build-
ing, Works and Reconstruction) Act, 1944.
Section 3 of the 1944-Act prohibited for a period of one
year from the date of the commencement of the Act, the work
of erecting, constructing, reconstructing, etc. of any
building, wall or other structure situate within the speci-
fied area except under the written permission of the Commis-
sioner and in accordance with the conditions that might be
specified therein. Section 8 of the Act provided that the
benefit of any written permission granted under s. 3 shall
be annexed to and shall go with the ownership of the build-
ing in respect of which it was granted and may be enforced
by every person in whom that ownership was vested.
In September 1947, the Municipal Commissioner granted
written permission (Exhibit A) to respondent No. 1 under s.
3 of the 1944-Act to raise temporary godowns on the land on
condition that the Commissioner might at any time direct the
owner to pull down or remove the work forthwith or within
such time ,as may be prescribed.
One of the godowns erected by respondent No. 1 was
leased out to appellant No. 1 in 1953 and the lease was
extended from time to time till 1957. In that year the
State Government sanctioned a scheme called the Town Plan-
ning Bombay City No. 1 scheme under the Bombay Town Planning
Act, 1954 and the scheme came into operation on December
1, .1957. The final scheme became a part and parcel of the
Bombay Town Planning Act 1954. Respondent No. 1 issued a
notice to the appellant calling upon it to quit and give
vacant possession of the godown leased out to it. On Sep-
tember 19, 1953, the Municipal Commissioner,. Greater Bom-
bay, issued a notice (Exhibit B) to respondent No. 1 calling
upon it to pull down and remove the entire building for the
construction of which permission was granted to it in 1947.
Respondent No. 1, in turn, issued a notice to the appellant
calling upon it to quit. The appellant having refused to
give vacant possession of the godown, respondent No. 1 filed
a suit for the appellant’s eviction on the ground that the
premises were required under s. 13(1)(hhh) of the ’Bombay
Rents (Hotel and Lodging Houses Rates) Control Act, 1947 for
the immediate purpose of demolition ordered by the local
authority.
604
The trial court ordered the appellant’s eviction and
delivery of immediate possession of the premises to respond-
ent No. 1. The appellate court allowed the appellant’s
appeal. The High Court set aside the decree of the appel-
late court.
On appeal it was contended by the appellants that (i)
the 1944-Act being a temporary Act, lapsed on the expiry of
two years from April, 1946 and so the Commissioner was not
competent to issue Exhibit B-Notice or to take steps to
enforce the conditions imposed by him under s. 3 while
granting written permission to construct the premises. (ii)
The Municipal Commissioner having ceased to have statutory
existence on the expiry of the 1944-Act, Exhibit B-notice
was a nullity, (iii) Even assuming that the Municipal Com-
missioner did not become non est on the expiry of the 1944-
Act, the notice was ineffective because s. 489 of the Bombay
Municipal Corporation Act, 1888 envisages the issue of a
notice only for giving effect to the requisition or order
made under the section. (iv) No statutory rule or bye-law
having been made under the 1944-Act, Exhibit B-notice did
not constitute an order contemplated by s. 13(1)(hhh) of the
Bombay Rent Control Act, 1947, (v) Under s. 13(1) (hhh)
before passing the eviction order the Court must be satis-
fied that the demolition was imminent and the evidence led
in this case showed that the premises were not required for
immediate demolition; (vi) The final scheme having been
suspended and varied, there was no subsisting order and
since there was no urgency for the demolition of the prem-
ises, invocation of s. 13(1) (hhh) was not called for and
(vii) Exhibit B- notice was ineffective because under the
Town Planning Acts of 1915, 1954 or 1966, it was the local
authority and not the landlord that had the power to evict.
Dismissing the appeals,
HELD: 1(a) There is no force in the contention that the
Municipal Commissioner was not competent to issue Exhibit
B-notice. The provisions of ss. 3 and 8 of the 1944-Act
were permanent as to the restrictions, rights and obliga-
tions imposed, acquired or incurred thereunder. A fortiory,
the rights acquired by the Municipal Commissioner by virtue
of the express conditions imposed by him while granting
Exhibit A permission, were not subject to a time limit and
did not lapse with the expiry of the Act. [621 E; 620 H]
(b) The analogy of the rule that criminal proceedings
taken against a person for offences committed under a
temporary statute will ipsc facto terminate when the tempo-
rary statute expired cannot be extended to rights and li-
abilities as in the instant case. It is settled law that
transactions concludedand completed under a temporary
statute, while the same was in force, often endure and
continue despite the expiry of the statute and ’so do’ the
rights and obligations acquired or incurred thereunder,
depending upon the provisions of the statute and the nature
and character of the rights and liabilities. No rigid or
inflexible rule can be laid down in this behalf. [616 F:G]
In the instant case, the City of Bombay (Building Works
Restriction) Act 1944; as evident from its preamble and
statement of Objects and ReasOns was designed to prevent the
growth of buildings in a haphazard fashion which might
conflict with the contemplated scheme of systematic town
planning in the area devastated by explosion. Section 3 of
the 1944-Act which related to the imposition of restrictions
on building work in that area, including the plot in ques-
tion, authorised the Municipal Commissioner to impose such
conditions as he might think fit to specify while granting
permission for construction of building or a structure. The
Municipal Commissioner gave permission to the respondents to
build on the plot subject to the express condition that the
structures would be pulled down whenever required to do so
to give effect to any improvement scheme that might be made
under the Town Planning Act. The rights and obligations
flowing from the conditions subject to which the permission
to build was granted to the respondents were annexed to the
ownership of the building for all time to come and were not
limited to the duration of the 1944-Act. [620 E-G]
state of Orissa v. Bhupendra Kumar Bose [1962] 2
Supp. S.C.R. 380, followed.
605
S. Krishnan and Ors. v. The State of Madras [1951] SCR
621, The State of Uttar Pradesh v. Seth Jagamandar Das and
Ors. A.I.R. 1954 S.C. 683 and Gopi Chand v. The Delhi Admin-
istration [1959] supp. 2 SCR 87 distinguished.
Steavenson v. Oliver (151 E.R. 1024, 1026-1027) and
Warren v. Windie [1803] 3 East 205, 211-212--102 E.R. (K.B.)
578, referred to.
2. Though the 1944-Act was a temporary Act, the Commis-
sioner did not cease to exist with the expiry of that Act.
The 1944-Act was supplemental to the Bombay Municipal Corpo-
ration Act, 1888. Being a creature of the 1888Act and a
functionary required to be appointed from time to time in
terms of s. 54 of that Act, his life did not depend upon the
life of the 1944-Act. [621 F-G]
3(a) The challenge to the validity of the notice on the
ground of lack of power in the Commissioner was wholly
unjustified. Although Exhibit notice was purported to have
been issued under s. 489 of the 1888-Act, it was really
issued under Special Regulation 36 which became a part and
parcel of the Town Planning Act 1954 by virtue of s. 51(3)
of the Act. The notice showed that it was being issued
under the Town Planning Act, 1954. The notice was, there-
fore, issued under the Special Regulation No. 36. [622 A B]
(b) The fact that reference to s. 489 of the 1888-Act
was erroneously or incorrectly made in the notice, was
immaterial. It is settled law that if the exercise of power
could be traced to a legitimate source, the fact that it was
exercised under a different power did not vitiate the exer-
cise of the power in question. [622 C-D]
Afzal Uttak v. The State of Uttar Pradesh [1964] 4 SCR
991 1000; I.K. Steel Ltd. v. Union of India [1969] 2 SCR 481
505; N.B. Sanjana v. Elphinstone Mill [1971] 3 SCR 506 515
and H.L. Mehra v. Union of India [1975] 1 SCR 138, 149
refered to.
4. The direction in Exhibit B-notice for demolition of
the premises clearly had its origin in the statutory provi-
sions and it constituted an order within the meaning of s.
13(1)(hhh) of the 1947-Act. The Municipal Commissioner had
plenary power under s. 3 of the 1944-Act to authorise the
construction of any building or structure in the area sub-
ject to restrictions specified in the permission. The
permission had been granted subject to the express condition
that respondent No. 1 shall pull down or remove the tempo-
rary structure when called upon. It can be enforced by the
Commissioner under Regulations 36 and 38 of the Special
Regulation. [624 E; 622H]
5(a) In view of the findings of fact by the court below
that the premises were required for the immediate purposes
of demolition, it was not open to the appellants to raise
the point at this stage. [624 F]
(b) There is a vital difference between cls. (hh) and
(hhh) of s. 13(1). While cl. (hh) relates to the landlords
bona fide intention to demolish the building of his own
volition and to erect a new building in its place, cl. (hhh)
relates to the compulsory demolition ordered by a local or
competent authority and was aimed at preventing a landlord
or tenant from impeding the Town Improvement or Town
Planning Scheme framed in public interest. It is because of
this difference that the ground specified in cl. (hhh) is
not subject to the conditions and restrictions in s. 13(3A)
and ss. 17A, 17B and 17C of the 1947-Act. [624 H]
(c) The statement of the Sub-Engineer that the Corpora-
tion would not expedite demolition without making alterna-
tive accommodation on which the appellant relied was made as
far back as 1962, and had no relevance for the purposes of
the present case. [625 C]
6(a) Though the State Government had suspended certain
regulations of the principal scheme, this suspension had not
the same effect as withdrawal or abandonment of the scheme,
which had not been done. Moreover, there had
12--502 SCI/77
606
not been a total suspension of all the regulations. Regula-
tions 36 and 38 which are material for the purposes of this
case were allowed to continue. [625 D-E]
(b) The proposal for variation of the principal scheme
having not materialised, it was not known what shape it
would assume. Until it was actually carried into effect,
the variation had no legal consequence. [625 F]
H.L. Mehra v. Union of India [1975] 1 SCR 138, 149 referred
to.
7. There was nothing to show that it was the local
,authority and not the landlord who had the power to evict a
tenant on the ground specified in s. 13(1) (hhh) of the
1947-Act. Under s. 507 of the 1888-Act, the landlord could
get an order against a tenant to allow him (the landlord)
reasonable facilities to enter the leased premises in
order to enable him to comply with the notice issued by the
Municipal Commissioner. [625 H]
JUDGMENT
CIVIL APPELLATE JURISDICTION Civil Appeals Nos 915 and
916 of 1972.
Appeals by Special Leave from the Judgment and Order
dated the 20-3-1972 of the Bombay High Court in S.C.A. Nos.
1686 and 1687 of 1969.
D.V. Patel (In CA 915) R.P. Bhatt (CA 916), M.P. Sabla.
P.B. Agarwal and B.R. Agarwala for the Appellant.
F.S. Nariman, H.C. Tunara and K.J. John for Respondents.
The Judgment of the Court was delivered by
JASWANT SINGH, J.--These two appeals by special leave
granted by this Court which are directed against the judg-
ment and order dated 20th March, 1972 of the High Court of
Bombay at Special Civil Applications Nos. 1686 and
1687 of 1969 shall be disposed of by this judgment.
The subject matter of dispute which has wended its way
to this Court is a godown, being godown No. 2 built on Plot
No. 37 bearing C.S. No. 130, Elphinstone Estate at Masjid
Siding Road, Kurla Street, Bombay-9 which belongs to Port
Trust, Bombay, Respondent No. 1 in both the above mentioned
appeals viz. M/s Benett Coleman & Co. got the aforesaid
plot No. 37 as also plot No. 36 on lease from the Port
Trust, Bombay, on 1st August, 1933 on a yearly rent of Rs.
416.89. On plot No. 37, the said respondent erected some
godowns which alongwith certain other buildings that had
grown up in a haphazard manner and could be described as
slums were destroyed as a result of terrific explosions
which occurred on April 14, 1944 in the Bombay Docks.
Being of the view that it was extremely desirable that
rebuilding in the devastated area should be carried out on
modern principles of town planning, the Bombay Municipal
Corporation by its resolution No. 763 dated 23rd November,
1944, declared its intention to formulate a town planning
scheme under the provisions of the Bombay Town Planning Act
of 1915. The Government of Bombay sanctioned the making of
the Scheme by their resolution No. 5355/33 dated 9th July,
1945 published in Official Gazette dated 12th July, 1945.
As the preparation of the scheme was likely to take time and
it was necessary to restrain owners of buildings in the
devastated area from reconstructing them in a haphazard
manner which would conflict
607
with the proposed scheme the Governor of Bombay in exercise
of the powers vested in him by virtue of the Proclamation
dated 4th November, 1939, issued by him under section 93
of the Government of India Act, 1935 assuming to himself
inter alia all the powers vested by or under. the Govern-
ment of India Act, 1935 in either chamber of the Provin-
cial Legislature made an Act called the City of Bombay
(Building Works Restriction) Act, 1944 (Bombay Act, No.
XVIII of 1944) (hereinafter referred to as ’the Bombay Act
1944’). Section 2 of this Act ordained that unless there
is anything repugnant in the subject or context, words and
expressions used in the Act shall have the same meaning as
in the Principal Act viz. the City of Bombay Municipal Act,
1888 (Bombay III 1888). Section 3 of this Act prohibited
every person during the period of one year from the date of
the commencement of the Act to do any work of erecting,
re-erecting, constructing, reconstructing, adding to or
altering or repairing any building, wall or other structure
or any part thereof situate in the area bounded on the South
by the northern edge of Carnac Road and Camac bridge, on the
East by the western edge of the Frere Road, on the North by
the southern edge of Elphinstone Road and Sandhurst Road and
on the West by the eastern edge of Mohamadally Road, or
laying out any private street in the said area, except under
the authority of a written permission granted by the Com-
missioner and in accordance with such conditions, if any, as
the Commissioner might think fit to specify in the permis-
sion. The proviso to the section authorised the Provincial
Government to extend the aforesaid period of one year by
means of notification published in the Official Gazette.
In exercise of the power conferred by the proviso, the
Government of Bombay extended the period referred to in
section 3 of the Act in respect of the restriction on build-
ing works without permission upto and inclusive of the
31st day of December, 1946, Section 8 of the Act provided
that the benefit of any written permission granted under
section 3 shall be annexed to and shall go with the owner-
ship of the building, wail or other structure or private
street, as the case may be, in respect of which it was
granted and may be enforced by every person in whom that
ownereship is for the time being vested. By means of
notification dated 3rd April, 1946, the Governor of Bombay
in exercise of the powers conferred on him by sub-section
(2) of section 93 of the Government of India Act, 1935 made
a proclamation with the concurrence of the then Governor
General revoking the aforesaid proclamation dated 4th Novem-
ber, 1939 as subsequently varied by the proclamations dated
the 15th February, 1943 and 20th November, 1945. Section
93 of the Government India Act, 1935 under which the procla-
mations dated the 4th November, 1939, 15th February, 1943,
20th November, 1945 and 3rd April, 1946 were made provided
as follows :--
"93. Provisions in case of failure of consti-
tutional machinery.
(1) If at any time the Governor of a Province
is satisfied that a situation has arisen in
which the Government of the Province cannot be
carried on in accordance with the provisions
of this Act, he may by proclamation:
608
(a) declare that Iris functions shall, to
such extent as may be specified in the Procla-
mation be exercised by him in his discretion;
(b) assume to himself all or any of the powers
vested in or exercisable by any Provincial
body or authority, and any such Proclamation
may contain such incidental and consequential
provisions as may appear to him to be neces-
sary or desirable for giving effect to the
objects of the Proclamation, including provi-
sions for suspending in whole or in part the
operation of any provisions of this Act relat-
ing to any Provincial body or authority:
Provided that nothing in this
sub-section shall authorise the Governor to
assume to himself any of the powers vested in
or exercisable by a High Court, or to sus-
pend, either in whole or in part, the
operation of any provision of this Act relat-
ing to High Courts.
(2) Any such Proclamation may be revoked or varied by a
subsequent Proclamation.
(2) A Proclamation under this section:
(a) shall be communicated forthwith to the
Secretary of State and shall be laid by him
before each House of Parliament;
(b) unless it is a Proclamation revoking a
previous Proclamation, shall cease to operate
at the expiration of six months :--
Provided that, if and so often as a
resolution approving the continuance in force
of such a Proclamation is passed by both
Houses of Parliament, the Proclamation shall,
unless revoked, continue in force for a fur-
ther period of twelve months from the. date
on which under this subsection it would
otherwise have ceased to operate, but no such
Proclamation shall in any case remain in force
for more than three years.
(4) If the Governor, by a Proclamation
under this section assumes to himself any
power of the Provincial Legislature to make
laws, any law made by him in the exercise of
that power shall, subject to the terms there-
of, continue to have effect untill two years
have elapsed from the date on which the Proc-
lamation ceases to have effect unless sooner
repealed or reenacted by Act of the appropri-
ate Legislature, and any reference in this Act
to. Provincial Acts, Provincial laws, or Acts
or laws of a Provincial Legislature shall be
construed as including a reference to such a
law.
(5) The functions of the Governor under
this section shah be exercised by him in his
discretion and no Proclama-
609
tion shall be made by a Governor under this
section without the concurrence of the Gover-
nor General in his discretion".
On 23rd September, 1947, the Municipal Commissioner,
Bombay granted written permission(Exh. ’A’) to respondent
No. 1 under section 3 of the Bombay Act, 1944, to raise
temporary structure in the form of godowns on the aforesaid
plot No. 37 at C.S. No. 130, Masjid Siding Road, Bombay
subject inter alia to the following express conditions :-
"(a) The provisions of the Municipal Act
and bye-laws made thereunder in force from
time to time shah be complied with;
(b) The Commissioner may at any time
direct the owner of the said premises to pull
down or remove the work hereby permitted or
any portion thereof forthwith or within such
time as he may prescribe. No compensation
shall be claimable by or payable to the owner.
Further if any such directions is not complied
with by the owner, the same may be enforced or
carried out in the manner provided by s.
489(1) (of the Municipal Act).
(c) No compensation whatsoever, whether
for damages loss or injury, shall be claimable
by or payable to the owner or any other person
in respect of any work carried out pursuant to
this permit, if the. building wall comes
within (i) the regular line of any street,
(ii) any improvement scheme that may be made
under the provisions of the Municipal Act,
(iii) any town planning scheme that may be
made under Bombay Building Town Planning
Act, 1915.
(d) The conditions of this permit shall
bind not only the owner of the said premises
but also his heirs, executors,
administrators".
Below the permission so granted, it was endorsed on
behalf of respondent No.1 that the above conditions were
acceptable to it.
Pursuant to the aforesaid permission, the respondent
erected some godowns, one of which (godown No.2) was leased
out by it to M/s Velji Lakshmi & Co. the appellant in Appeal
No. 915 of 1972 on 21st December, 1953 for a period of
eleven months with effect from 1st February, 1954. The
period of the lease in favour of the said appellant was
extended from time to time on the original terms and condi-
tions with the result that it continued to remain in occupa-
tion of the premises. On 4th September, 1957, the Govern-
ment of Bombay sanctioned what came to be called the Town
Planning Bombay City No. 1 (Mandvi and Elphinstone Estates)
Scheme under section 51 of the Bombay Town Planning Act,
1954 (Act XXVII of 1955) which had come into force on 1st
August, 1957 and fixed 1st of December, 1957 as the date on
which the Scheme would come into operation. A notification
was published in the Official Gazette on 12th
610
September, 1957 declaring that the laud on which the suit
premises stood was affected by the said Scheme. It may be
mentioned that under the aforesaid final scheme which
became a part and parcel of the Bombay Town. Planning Act,
1954 by virtue of section 51 (3) of the Act, certain spe-
cial regulations were also made by the arbitrator to control
development of the area included in the Scheme. On 10th
September, 2957, respondent No. 1 issued a notice to the
said appellant calling upon it to quit, vacate and deliver
quiet, vacant and peaceful possession to it of the said
godown. This notice was issued by the respondent on the
grounds that the godown was required by it for its bonafide
use and occupation and the appellant had sublet and/ or
transferred interest in the godown to someone else without
the permission of the respondent and infringed the terms and
conditions of the lease dated 21st of December, 1953, the
period of which had also expired on 31st of August, 1957.
On 19th September, 1958, the Municipal Commissioner, Great-
er Bombay, issued the following notice (Exh. ’b’) to re-
spondent No. 1 :--
"The Bombay Municipal Corporation Bombay
Town Planning Act, 1954 Town Planning Scheme
Bombay City No. 1.
Notice No. FE/221
To
The Times of India
Owner: Original Plot No. 37 Elphinstone
Estate Section.
WHEREAS the Government of Bombay has been pleased to
sanction the above scheme under section 51 of the Bombay
Town Planning Act, 1954 (XXVII of 1955) on the 4th Septem-
ber, 1957 and to fix the 1st December, 1957 as the date on
which the scheme shall come into operation AND WHEREAS the
Notification relating to such sanction has been published
under No.. TPB-IO54-M. Local Self Government and Public
Health Department at page 2611 of Part I of the Bombay
Government Gazette dated the 12th September, 1957 and ’since
under section 53 of the said Act all rights and liabilities
created by the said Scheme shall come into force from the
1st December- 1057 the date notified ’by Government in their
above notification AND WHEREAS you are aware that the land
delineated in the Scheme Plans (which may be, inspected, if
necessary at the office of the City Engineer. Town Plan-
ning Scheme No.1 Bombay Municipal Corporation) upon which
your temporary structure stands, is affected by the said
Scheme AND WHEREAS all the rights of the local Authority
under the Bombay Town Planning Act, 1954 and the Bombay Town
Planning Rules, 1955 are hereby expressly reserved AND
WHEREAS you are permitted under the City of Bombay (Build-
ing Works Restriction) Act, 1944, to erect a temporary
structure on the terms and conditions mentioned in the
said permit AND WHEREAS you agreed to pull down or remove
the building or
611
work whenever required by me, to do so, you are hereby
called upon to pull down and remove the entire building or
work in respect of which permission was granted under Permit
No. 52/1520/TP dated 23rd December, 1947 on or before 30th
October, 1958 failing which I shall cause the building or
work to be pulled down or removed under section 489 of the
Bombay Municipal Corporation Act and shall seek to recover
the costs thereof as provided by that Municipal Act.
Please note that this notice is being served strictly
with out prejudice to the rights of the local authority
under the Bombay Town Planning Act, 1954 and the Bombay
Town Planning Rules, 1955 which rights are hereby express-
ly reserved.
Dated this 19th day of September, 1958.
Sd/-
Municipal Commissioner
For Greater Bombay".
On 22nd of February, 1960 respondent No. 1 issued another
notice to M/s Velji Lakhamsi & Co. calling upon it to. quit,
vacate and deliver peaceful and vacant possession of the
godown in its occupation within 24 hours from the date of
the receipt of the notice. This notice of ejectment
was issued by the respondent to. M/s Velji Lakhamsi
& Co. on four grounds viz. (a) that it was in arears of
rent from 1st November, 1959 at the rate of Rs. 2,500/p.m.,
(b) that the premises were required by the respondent for
the immediate purpose of demolition ordered by the Municipal
Commissioner for Greater Bombay, (c) that the appellant had
sublet the premises to M/s Jamnadas Bhimji & Co., the
appellant in Appeal No. 916 of 1972 against the provisions
of Bombay Act LVII of 1947 and (d) that it was profiteering
from such subletting.
On M/s Velji Lakhamsi & Co.’s failure to comply with
respondent No.1’s aforesaid notices calling upon it to
vacate the premises, the latter brought a suit in the Court
of Small Causes, Bombay on 18th April, 1960 ’for eviction
of the former on the ground that the premises were required
under section 13(1) (hhh) of the Bombay Rents (Hotel and
Lodging Houses Rates) Control Act, 1947 (hereinafter re-
ferred to as ’the Bombay Rents Control Act, 1947’) for the
immediate purpose of demolition ordered by the Local Author-
ity i.e. the Town Planning Authorities and the Bombay Munic-
ipal Corporation or other competent authority. Although it
was also averred by respondent No. 1 in the plaint that it
required the premises reasonably and bonafide for its own
use and occupation, it abandoned this plea later on. The
said respondent also sought a decree against M/s Velji
Lakhamsi & Co. for Rs. 2,500/- on account of arrears of rent
for the month of March, 1960 as also for future mesne prof-
its and costs. M/s Jamnadas Bhimji & Co. being in possession
through M/s Velji Lakhamsi & Co. of a part of the premises
as a sub-tenant, it was also impleaded by respondent No. 1
as a defendant to the suit.
612
The suit was contested by the appellants inter alia on
the grounds that respondent No.1’s aforesaid notices to.
quit were not valid; that they were not bound by any under-
taking given by respondent No. 1 to the Municipal Corpora-
tion; that the aforesaid notice (Exh. ’B’) given by the
Municipal Corporation to respondent No. 1 did not subsist in
view of the fact that the aforesaid scheme having been kept
in abeyance, the Corporation did not propose to take immedi-
ate action in pursuance of the notice; that nothing was
outstanding against M/s Velji Lakhamsi & Co. by way of
arrears of rent and that Rs. 2,500/p.m. claimed by respond-
ent No. 1 was far in excess of the standard rent. On the
pleadings of the parties, the. trial court framed the
following issues :--
"1. Is the tenancy of defendant No. 1 not
properly terminated ?
2. Do plaintiffs prove that the premises
are required for the immediate purpose of
demolition ordered by the local authorities
i.e. the Town Planning Authorities and the
Municipality or other competent authorities ?
3. To what decree, if any, are the’ plaintiffs
entitled ?"
On a consideration of the evidence adduced in the case,
the trial court by its judgment dated 12th September, 1963
negatived the contentions raised by the appellants and
decreed the suit and ordered the appellants to deliver pos-
session of the suit premises to respondent No. 1 by 11th
September, 1964, holding that the tenancy of M/s Velji
Lakhamsi & Co. had been validly terminated; that respondent
No. 1 having been served with a notice of demolition by the
local authority, it had fulfilled the requisite of the
requirement of the premises for the immediate purpose of
demolition as contemplated by section 13(1) (hhh) of the
Bombay Rents Control Act, 1947; that while clause (hh) of
section 13(1) of the Act relates to landlord’s intention to
demolish the building of his own volition and to erect a new
building, its succeeding clause (hhh) relates to forcible
demolition ordered by the local authority or by a compe-
tent authority whose powers are not hampered in any way by
the provisions of the Rent Act; that if the local authority
issued a notice that the premises are required for the
purpose of demolition, it would not then be open either to
the landlord or the tenant, whosoever may be in possession,
to question the authority trying to seek protection under
the provisions of the Rent Act, and whenever such a notice
was issued, the purpose would have to be taken to be imme-
diate in spite of the fact that the actual implementation of
the Scheme may take some time. The Court further
held that as the Scheme had been sanctioned, the Commission-
er who gave the notice (Exh ’B’) should be deemed to have
given it as a competent authority under the Municipal Act.
Aggrieved by this decision, the appellants in both the
appeals preferred separate appeals to the appellate Bench of
the Court of Small Causes at Bombay which were allowed by a
common Judgment dated 10th December, 1968 with the observa-
tions that the conditions which the Commissioner laid down
in the written permission (Exh. ’A’)
613
granted under section 3 of the Bombay Act, 1944 (made by the
Governor under the proclamation dated 4th November, 1939)
were not analogous to statutory rules and regulations or
bye-laws; that the said Act which was of temporary character
having lapsed on 3rd April, 1948, the commissioner ceased
to have statutory authority to call upon respondent No. 1 to
demolish the suit premises and thus to enforce the condi-
tions mentioned in Exhibit ’A’ which also lapsed on the
expiry of the Act and as the notice (Exh. ’B’) by the Munic-
ipal Commissioner to respondent No. 1 was not under any
statutory power exercisable by him but was given under the
contract between him and respondent No. 1, it could not be
called an order within the meaning of section 13(1) (hhh) of
the Bombay Rents Control Act, 1947 and form the basis of a
suit for eviction of the appellants from the suit premises.
The appellate Bench, however, held that there was no sub-
stance in the argument advanced on behalf of the appellants
that the final scheme having been kept in abeyance, the
requirement of respondent No. 1 could not be called an
immediate purpose of demolition as ordered by the local
authority. The appellate Bench further remarked that if
the notice (Exh. ’B’) could be construed as an order under
section 13(1) (hhh) of the Bombay Rents Control Act, 1947,
the purpose for which respondent No. 1 called upon M/s
Velji Lakhamsi & Co. to vacate the premises would be for
the immediate purpose of demolition as ordered by the local
authority Respondent No. 1 thereupon took the matter to the
High Court of Judicature at Bombay by means of the aforesaid
petitions Nos. 1686 and 1687 of 1969 under Article 227 of
the Constitution. By its judgment dated 20th March, 1972,
the High Court granted the petitions and set aside the
judgment and decree passed by the appellate Bench of the
Court of Small Causes and restored those of the trial Court
holding that the notice (Exh. ’B’) given by the Municipal
Commissioner on 19th September, 1958, was clearly an order
of demolition by the competent authority; that if the Com-
missioner granted any permission to build some work subject
to certain conditions which he could have imposed during the
period in which the restrictions imposed by section 3 of
the Bombay Act, 1944 were in force, it could not be legiti-
mately contended that the person who contravened the condi-
tions by which he was bound could not be dealt with under
sections 5 and 6 of the Act; that the mere fact that re-
spondent no. 1 had agreed to the conditions specified in
Exhibit ’A’ did not in any way affect the legal consequences
of the permission or the legal nature of the power exercised
by the Commissioner under section 3 of the Act and that as
long as the structures built under that permission stood,
the Commissioner could have called upon respondent No. 1 to
remove the same; that the Commissioner was within his powers
to issue the notice (Exh. ’B’) dated 19th September, 1958,
and that the trial Court was right in its view that the said
notice was an order within the meaning of section 13 (1)
(hhh) of the Bombay Rents Control Act, 1947. With regard
to the appellants’ plea that the notice (Exh. ’B’) had lost
its efficacy as the town planning scheme had been held in
abeyance, the High Court observed :--
"It may be that the town planning
scheme is in abeyance for the very fact that
persons like Mr. Bhatt’s clients are
614
obstructing eviction proceedings filed by the
landlords. It may be that there are very
many other reasons for its abeyance. The
question that the Court must consider under
section 13(1)(hhh) is as to whether the land-
lord is entitled to recover possession as the
premises are required for the immediate pur-
pose of demolition. It may be that some
landlords would like to postpone the removal
of the structure. But where a landlord bound
by the notice, wants to comply with the notice
issued to him by the Municipal Commissioner
without delaying further in the matter and
perhaps is eager to co-operate with authori-
ties in enforcing the town planning scheme,
it cannot be, said that he does not require
the premises for the purpose of demolition".
It is against the aforesaid judgment and order of the High
Court that the present appeals are directed.
Appearing in support of the appeals, Mr Patel and Mr.
Bhatt,learned counsel for appellant in C.A. No. 915 of 1972
and C.A. No.916 of 1972 respectively have reiterated almost
all the contentions raised on behalf of their clients before
the courts below regarding the validity and efficacy of the
notice (Exh. ’B’). They have strenously urged that the
ground specified in clause (hhh) of sub-section (1) of
section 13 of the Bombay Rents Control Act, 1947, on which
the suit out of which the present appeals have arisen was
based could not be called in aid by respondent No. 1 as the
elements of that clause were not at all satisfied. Elabo-
rating their contention, the learned counsel have canvassed
the following points :--
(1) That the Bombay Act, 1944, being a
temporary statute, not governed by the rule
enunciated in section 7 of the Bombay General
Clauses Act, having automatically disappeared
or lapsed on the expiry of two years commenc-
ing from 3rd April, 1946 on which the afore-
said proclamation dated 4th November, 1939
made under section 93(1) of the Government of
India Act, 1935 ceased to have effect, the
Commissioner was not competent to issue the
notice (Exh. ’B’)or take any step to enforce
the conditions imposed by him under section 3
of the. Act while granting written permis-
sion (Exh. ’A’) to construct the premises in
question. They have, in support of their
submission, invited our attention to the
decisions of this Court in S. Krishnan and
Ors. v. The State of Madras (1951 S.C.R. 621),
The State of Uttar Pradesh v. Seth Jagamander
Das and Ors. (A.I.R. 1954 S.C. 683) and Gopi
Chand v. The Delhi Administration (1959)
Supp 2 S.C.R. 87.
(2) That the Municipal Commissioner,
Bombay, having ceased to have a statutory
existence on the, expiry of
615
the Bombay Act, 1944, the notice, Exh.
(’B’) was a nullity.
(3) That assuming without admitting, that the
Municipal Commissioner did not become non est
on the lapse of the Bombay Act, 1944 even then
the notice is invalid and ineffective as
section 489 of the Bombay Municipal Corpora-
tion Act, 1883 under which it purports to
have been issued envisages the issue of a
notice only for giving effect to the requisi-
tion of order made under the sections, sub-
sections and clauses of the Act specified
therein.
(4) That no statutory rule or bye-law having
been made under the Bombay Act, 1944 and the
notice (Exh. ’B’) which was based upon the
agreement contained in Exhibit ’A’ between the
Municipal Commissioner, Bombay, and respondent
No. 1 and not on any statutory power exercisa-
ble by the Commissioner, did not constitute an
order as contemplated by clause (hhh) of sub-
section (1 ) of section 13 of the Bombay Rents
Control Act, 1947.
(5) That assuming without admitting that the
notice (Exh. ’B’) amounted to an order, still
clause (hhh) of sub-section (1 ) of section 13
of the Bombay Rents Control Act, 1947 requires
the Court to be satisfied before passing a
decree for eviction of a tenant that the
premises are required for the immediate pur-
pose of demolition ordered by any local au-
thority or other competent authority. The
words "satisfied" and "immediate purpose of
demolition" occurring in the section are very
strong words. They denote that the urgency
should be such as to leave no room for doubt
that it can brook no delay. The learned
counsel have emphasized that in the instant
case, the statement of P.W. Chitaman Krishnaji
L,maya, the Sub Engineer, Bombay Municipal
Corporation, to the effect that the general
policy of the Corporation is not to expedite
the demolition unless some alternative accom-
modation is made for the inmates of the plots
where the constructions are to be demolished
unequivocally shows that the premises in
question are not really required for the
immediate purpose of demolition.
(6) That the final scheme having been suspend-
ed and varied, there was no subsisting order
and the requirement of the. premises by the
respondent No. 1 could not be said to. be for
the immediate purpose of demolition ordered by
the local authority so as to permit the invo-
cation of clause (hhh) of sub-section (1) of
section 13 of the Bombay Rents Control Act,
1947.
616
(7) That the notice (Exh. ’B’) is ineffec-
tive as under the Town Planning Act of 1915
or of 1956 or of 1966, it is local authority
and not the landlord who has the power to
evict the tenant.
Mr. Nariman, learned counsel for respondent No. 1 has
stoutly combated and countered all the points raised on
behalf of the. appellants. He has referred us to various
provisions of the City of Bombay Municipal Act, 1888, the
Bombay Act, 1944, the Bombay Town Planning Acts, 1915, 1954
and 1966, the Bombay Rents Control Act, 1947 and a number of
authoritative pronouncements which would be adverted to at
appropriate places to show that the Bombay Act, 1944 is
supplemental to the Bombay Municipal Act, 1888; that the
fights acquired and liabilities incurred by virtue of Exhib-
it ’A’ granted under the Bombay Act, 1944 were. of abiding
nature and did not lapse with the expiry of the said Act;
that the Municipal Commissioner survived the lapse of the
Bombay Act, 1944 and had plenary powers to enforce the
conditions subject to which permission (Exh. ’A’) was grant-
ed and that the. notice (Exh. ’B’) which had its genesis in
the statutory provisions is perfectly valid and effective
and constitutes an order within the meaning of clause (hhh)
of sub-section (1) of section 13 of the Bombay Rents Control
Act. 1947.
We shall deal with the points raised on behalf of the
appellants in the order in which they have been raised.
Re: Point No. 1 :--This pivotal point canvassed by the
learned counsel for the appellants though it looks attrac-
tive at first sight cannot stand a close scrutiny. It is
true that the offences committed against a temporary
statute have, as a general rule, to be prosecuted and pun-
ished before the statute expires and in the absence of a
special provision to the contrary, the criminal proceedings
which are being taken against a person under the temporary
statute will ipso facto terminate as soon as the statute
expires. But the analogy of criminal proceedings or physi-
cal constraints cannot, in our opinion, be extended to
rights and liabilities of the kind with which we are con-
cerned here for it is equally well settled that transactions
which are concluded and completed under the temporary stat-
ute while the same was in force often endure and continue in
being despite the expiry of the statute and so do the rights
or obligations acquired or incurred thereunder depending
upon the provisions of the statute and nature and character
of the rights and liabilities. The following observations
at pages 409& 410 in Craies on Statute Law (Seventh Edition)
are worth quoting in this connection :--
"The difference between the effect of
the expiration of a temporary Act and the
repeal of a perpetual Act is pointed out by
Parke B. in Steavenson v. Oliver (1841) 8 M. &
W. 234, 240, 241. There is a difference
between temporary statutes and statutes which
are repealed; the latter (except so far as
they relate to transactions already completed
under them) become as if they had never exist-
ed, but with respect
617
to the former, the extent of the restric-
tions imposed, and the duration of the provi-
sions, are matters of construction".
It will also be advantageous in this connection to refer
to Para 720 at page 475, Volume 36 of Halsbury’s Laws of
England (Third Edition) :--
"720. Effect of expiry a matter of
construction. The effect of the expiry of a
temporary statute is in each case a matter of
construction. There is no presumption that
a statute is to be treated on expiry as dead
for all purposes."
We are also fortified in our view by the decision of
this Court in Slate of Orissa v. Bhupendra Kumar Bose [1962]
2 Supp. S.C.R. 380, where while dealing with the question
whether the rights created by Orissa Ordinance No. 1 of 1959
promulgated by the Governor validating the election to the
Cuttack Municipality (which had earlier been declared to be
invalid by the High Court) and curing the invalidity of the
electoral rolls in respect of other. Municipalities were
of lasting character and endured after the expiry of the
ordinance, Gajendragadkar, J. (as he then was) speaking for
the Court observed:
"In our opinion, it would not be reason-
able to hold that the general rule about the
effect of the expiration of a temporary Act on
which Mr. Chetty relies is inflexible and
admits of no exceptions. It is true for
instance that offences committed against
temporary Acts must be prosecuted and punished
before the Act expires. If a prosecution has
not ended before that day, as a result of the
termination of the Act, it will ipso facto
terminate. But is that an inflexible and
universal rule ? In our opinion, what the
effect of the expiration of a temporary Act
would be must depend upon the nature of the
right and obligation resulting from the provi-
sions of the, temporary Act and upon their
character whether the said right and liability
are enduring or not .....In considering the
effect of the expiration of a temporary stat-
ute, it would be unsafe to lay down any in-
flexible rule. H the right created by the
statute is of an enduring character and has
vested in the person, that right cannot be
taken away because the statute by which it was
created has expired. If a penalty had been
incurred under the statute and had been im-
posed upon a person, the imposition of the
penalty would survive the expiration of the
statute. That appears to be the true legal
position in the matter ........ In our
opinion having regard to the object of the
Ordinance and to the rights created by the
validating provisions, it would be difficult
to accept the contention that as soon as the
Ordinance expired the validity of the elec-
tions came to an end and their invalidity was
revived.. The rights created by this Ordi-
nance are, in our opinion, very similar to the
rights with which the court was dealing in the
case of Steavenson and they must be held to
endure and ,last even after the expiry of the
Ordinance. The Ordinane has in terms
618
provided that the Order of Court declaring the
elections to the Cuttack Municipality to be
invalid shall be deemed to be and always to
have been of no legal effect whatever and that
the said elections are thereby validated.
That being so, the said elections must be
deemed to have been validly held under the Act
and the life of the newly elected Municipality
would be governed by the relevant provisions
of the Act and would not come to an end as
soon as the Ordinance expires". (underlining
is ours).
In arriving at his conclusion, the learned Judge relied on
Steavenson v. Oliver (151 E.R. 1024, 1026-1027 and Warren v.
Windle (1803) 3 East 205, 211-212: 102 E.R. (K.B.) 578.
Steavanson v. Oliver (supra) related to 6th Geo. 4,
c 13 3, section 4 whereof provided that every person who
held a commission or warrant as surgeon or assistant
surgeon in His Majesty’s Navy or Army, should be entitled to
practise as an apothecary without having passed the usual
examination. The statute was temporary and it expired on
1st August, 1826. It was urged in that case that a person
who was entitled to practise as an apothecary under the Act
would lose his right after 1st August, 1826, because there
was no saving provision in the statute and its expiration
would bring to an end all the rights and liabilities created
by it. The Court rejected this contention and held that the
person who had acquired a right to practise as an apothe-
cary, without having passed the usual examination, by virtue
of the provision of the temporary Act, would not be deprived
of his right after its expiration. In dealing with the
question about the effect of the expiration of the temporary
statute, the learned Judges composing the Bench observed:
"Lord Abinger, C.B.--We are of opinion
that the replication is good, and there must
therefore be judgment for the plaintiff. It
is by no means a consequence of an act of
Parliament’s expiring, that fights acquired
under it should likewise expire. Take the
case of a penalty imposed by an act of Parlia-
ment, would not a person who had been guilty
of the offence upon which the legislature had
imposed the penalty while the act was in
force, be liable to pay it after its expira-
tion. The case of a right acquired under the
act is stronger. The 6 Geo. 4, c. 133, pro-
vides, that parties who hold such warrants
shall be entitled to practise as apothecaries;
and we cannot engraft on the statute a new
qualification, limiting that enactment.
Parke, B.--Then comes the question
whether the privilege of practising given by
the stat. 6 Geo. 4, referred to in the repli-
cation is one which continues notwithstanding
the expiration of that statute.. That depends
on the construction of the temporary enact-
ment. There is a difference between temporary
statutes and statutes which are repealed, the
latter (except so far as they relate to trans-
actions already completed under them) become
as if they had never existed; but
619
with respect to the former, the extent of the
restrictions imposed, and the duration of the
provisions are matters of construction. We
must therefore look at this act, and see
whether the restriction in the 11th clause,
that the provisions of the statute are only to
last for a limited time, is applicable to this
privilege. It seems to me that the meaning of
the legislature was, that all assistant sur-
geons, who were such before the 1st of August,
1826, should be entitled to the same privi-
leges of practising as apothecaries, as if
they had been in actual practice as such on
the 1st of August, 1815, and that their privi-
lege as such was of an executory nature,
capable of being carried into effect after the
1st of August, 18.9.6. Also that part of the
section relating to the proof by the produc-
tion of a certificate, although the language
of the legislature became perfectly illusory,
inasmuch as it left the party to the same mode
of proof as before, still the intention was,
that no other proof should be required than
the production of the certificate; although by
using the words, "that the proof should be by
the production of a certificate under the seal
of the corporate body, "the mode of proof was
left as it was before. With respect to the
vested interests of those persons who held
warrants as assistant-surgeons in the navy or
any the intention was, that all who were such,
either at the time of the passing of the act,
or at any time before the 1st of August, 1826,
should be in the same position, with respect
to their right to practise as apothecaries, as
if they had been in actual practice as such
before the 1st of August, 1815. I am the more
disposed to think thus, on the ground that the
penalties given by this act would probably
survive its expiration, and that persons who
violated its provisions might afterwards be
punished in the way pointed out. If it were
not so, any person who had violated those
provisions within six months prior to the
expiration of the act, would not be liable to
punishment at all. It is, however, necessary
to decide that point; it is enough to say that
we think those who were qualified by being
assistant-surgeons in the navy before the 1st
of August 1826 retained that qualification not
withstanding the expiration of the statute.
Alderson, B.--I am of the same opinion.
With respect to the difference between the 5th
and 1 st of August, supposing the latter to be
the correct date, still the objection would
not be good, for the alteration effected in
this respect by 6th Geo, 4, e. 133, is one of
a permanent nature, and the objection could
only be rendered valid by holding that statute
as one in all respects of a temporary charac-
ter. But I apprehend that, on the true con-
struction of these acts of Parliament, those
parts of the 6th Geo. 4, which explain the
provisions of the 55 Geo. 3 are in their own
nature permanent and effectual, notwithstand-
ing the final clause, which makes the act
temporary. Independently, however of this
consideration.I agree in the opinion already
expressed by any Brother Parke.
620
Rolfe, B.--The only important question
in this case is the last. The 6 Geo. 4, when
it says that the act shall continue in force
till the I st of August next, does not mean
that what is therein enacted should be of no
force, after that day, if it were so, the act
might be productive of the greatest
injustice ....... I think that although in
one sense this act is not in force, yet it is
still permanent as to the rights acquired
under it."
In Warren v. Windle (supra where the statute, 26 Geo. 3,
c 108 professed to repeal the statute of 19 Geo. 2, c. 35
absolutely though its own provisions, which it substituted
in place of it, were to be only temporary, Lord
Ellenborough, C.J. held that "a law though temporary in some
of its provisions, may have a permanent operation in other
respects".
The foregoing discussion makes it abundantly clear that
the question as to whether the restrictions, rights and
obligations flowing from the provisions of a temporary
statute which come to an automatic end by efflux of time
expire with the expiry of the statute or whether they endure
and survive after the expiry of the statute depends upon the
construction of the statute and the nature and character of
the rights, restrictions and obligations and no rigid or
inflexible rule can be laid down in this behalf. We must,
therefore, scrutinise the provisions of the temporary stat-
ute in question viz. the Bombay Act, 1944 which has long
since expired and the permit (Exh. ’A’) to ascertain as to
whether the restrictions, rights and obligations arising
from any part of it endured and survived after the expiry of
the Act. The Act, as evident from its preamble and State-
ment of Objects and Reasons, was designed to prevent the
growth of buildings in a haphazard fashion which might
conflict with the contemplated scheme of systematic town
planning in the aforesaid area devastated by explosions.
Section 3 of the Act which related to the imposition of
restrictions on building works in the said area including
the plot in question authorised the Municipal Commissioner
to impose such conditions as he might think fit to specify
while granting permission for construction of a building or
a structure. In the instant case, the Municipal Commission-
er gave permission to the respondents to build
on the plot in question subject to the express condition
that the structures would be pulled down by them whenever
required to do so to give effect to any improvement scheme
that might be made under the Bombay Building Town Planning
Act. The rights and obligations flowing from the conditions
subject to which the permission to build was granted to
respondent No. 1 were annexed to the ownership of the build-
ing for all time to come and were not limited the duration
of the Bombay Act, 1944. Accordingly, we are satisfied that
the provisions of sections 3 and 8 of the Bombay Act, 1944
were permanent as to the restrictions, rights and obliga-
tions imposed, acquired and incurred thereunder. A fortio-
ri, the rights acquired by the Municipal Commissioner,
Greater Bombay, by virtue of the express conditions imposed
by him while granting the permit (Exh. ’A’) were not subject
to a time limit and did not lapse with the expiry of the
Act.
621
All the aforesaid three decisions cited by the learned
counsel for the apellants are clearly distinguishable. In
the State of Uttar Pradesh v. Seth jagamander Das (supra),
this Court while upholding the order of the High Court of
Judicature at Allahabad quashing the proceedings taken
against the respondent under section 120B, Indian Penal
Code, read with Rules 81 (4) and 121, 0 the Defence of India
Rules for the alleged violation of clause (2) of the Non-
Ferrous Metals Control Order (1942) held that prosecution
could not be commenced for contravention of the Non-Ferrous
Metals Control Order (1942) after the expiry of the Defence
of India Act under which it had been made because that
would amount to the enforcement of a dead Act.
Gopi Chand v. The Delhi Administration (supra) was also
a criminal case where this Court set aside the conviction
and sentence of the appellant in three cases for offences
ordinarily triable under the warrant case procedure but
which were tried according to the procedure prescribed for
trial of summons cases by Chapter XX of the Code of Criminal
Procedure. The conviction and sentence were quashed on the
ground that the summons case procedure which had been adopt-
ed for trial of the appellant according to section 36(1) of
the East Punjab Public Safety Act, 1949 could not be contin-
ued after the expiry of the Act in the absence of a saving
clause similar to section 6 of the General Clauses Act.
S. Krishnan & Ors. v. The State of Madras (supra) relat-
ed to detention under the Preventive Detention (Amendment)
Act of 1951 and is not germane to the point under considera-
tion.
Consquently we have no hesitation in holding that there
is no merit in the appellant’s plea that Municipal Commis-
sioner, Greater Bombay was not competent after the expiry of
the Bombay Act, 1944 to issue the notice (Exh. ’B’] to
respondent No. 1 calling upon it to demolish the premises in
question.
Re. Point No. 2 :--This plea is also misconceived. The
Bombay Act, 1944 was indisputably supplemental to the Bombay
Municipal Act, 1888 as the latter Act has been clearly
referred to in sections 2 and 6 of the former Act as "the
Principal Act". Though the former Act was temporary, the
Municipal Commissioner alluded to therein did not cease to
exist with the expiry of the Act. Being a creature of the
Bombay Municipal Corporation Act, 1888, and a functionary
who is required to be appointed from time to time in terms
of section 54 of the Act, his life did not depend upon the
life of the Bombay Act, 1944. The submission made by the
learned counsel for the apellants is therefore, repelled.
Re. Point No. 3 :--There is no substance in this point
as well. A careful perusal of the notice (Exh. ’B’) would
show that though it held out a threat to respondent No. 1
that in case it failed to comply with the direction regard-
ing the demolition of the entire structure in question,
the Municipal Commissioner would cause the structure to be
pulled down or removed under section 489 of the
622
Bombay Municipal Act, it was really issued under the Special
Regulation No. 36 which, as stated earlier, became a part
and parcel of the Bombay TOwn Planning Act, 1954, by virtue
of section 51(3) of the Act. The notice ex facie shows that
it was being issued under the Bombay Town Planning Act,
1954. It expressly referred to the aforementioned scheme
viz. the Town Planning Bombay City No. 1 (Elphinstone Es-
tate) Scheme, the sanction of the Scheme by the Government
of Bombay under section 51 of the Bombay Town Planning Act,
1954 (Act XXVII of 1955), the coming into. operation of the
Scheme with effect from 1st of December, 1957, the publica-
tion of the sanction of the Scheme in the Bombay Government
Gazette and intimated to respondent No. 1 that the land upon
which its premises in question stood was affected by the
Scheme. We have, therefore, no doubt in our mind that the
notice was issued under the Special Regulation No. 36. The
fact that reference to section 489 of the Municipal Act,
1888 was erroneously or incorrectly made in the notice is
immaterial as it is well settled that if the exercise of a
power can be traced to a legitimate source, the fact that it
was purported to have been exercised under a different power
does not vitiate the exercise of the power in question. A
reference in this connection may usefully be made to the
decisions of this Court in Afzal Ullah v. The State of Uttar
Pradesh(D; J.K. Steel Ltd. v. Union of India(2); N.B. Sanja-
na v. Elphinston Mill(3) and H.L. Mehra v. Union of
India(4). We feel tempted at this juncture to reproduce the
following observation made by this Court in N.B. Sanjana v.
Elphinston Mill (supra) :--
"Dr. Syed Mohammad is, no doubt, well founded
in his contention that if the appellants have
power to issue notice either under rule 10A or
rule 9(2) (9f the Central Excise Rules,
1944), the fact that the notice refers specif-
ically to a particular rule, which may not be
applicable, will not make the notice invalid
on that ground as has been held by this Court
in J.K. Steel Ltd. v. Union of India
(supra).
Testing the notice (Exh. ’B’) from the point of view of
the existence of the power of the Commissioner to issue it,
we are convinced that he enjoyed the power in full measure
and the challenge to the validity of the notice on the
ground of lack of power in the Commissioner is wholly unjus-
tified.
Re. Point No. 4:--This point is also devoid of
substance. Though no statutory rule or bye-law appears to
have been made under the Bombay Act, 1944, the Municipal
Commissioner had plenary power under section 3 of the Act
to authorise by means of a written permission the construc-
tion of any building or structure in the area described in
the Schedule to the Act subject to such conditions, if any,
as he might have thought fit to specify in the permission.
The permission (Exh. ’A’) having been granted subject to the
express condition that the plaintiff shall pull down or
remove the temporary
(1) [1964] 4 S.C.R. 991, 1000. (2) [1969] 2 S.C.R.481,505.
(3) [1971] 3 S.C.R. 506, 515. (4) [1975] 1 S.C.R.138,149.
623
structure in question whenever called upon to do so and the
same having been annexed to and made to go With the owner-
ship of the structure in respect whereof, it was granted by
virtue of section 8 of the Bombay Act, 1944, it could be
enforced by the Municipal Commissioner under Regulations
Nos. 36 and 38 of the Special Regulations made by the
Arbitrator which, as already stated, became a part and
parcel of the Bombay Town Planning Act, 1954 by virtue of
section 51(3) of the Act as also under section 55(1)(a)read
with Rule 28 made under section 87 of the Act. The Special
Regulations Nos. 36 and 38 as well as section 55 of the
BOmbay Town Planning Act, 1954 and Rule 28 made under sec-
tion 87 of the Act are reproduced below for facility of
reference :--
"Regulation No. 36 :--All temporary structures
within the boundaries of a final plot i.e.
those which have been permitted to be con-
structed by the Municipal Corporation under
section 15 of the Bombay T.P. Act subject to a
condition or under an agreement whereby such
structures have to be removed by the owners
concerned at their cost whenever called upon
to do so, by the Municipal Corporation, shall
be so removed within a period of two years
from the date the final scheme comes into
force.
Provided, however, that this limit may
be extended by the Municipal Commissioner in
cases where genuine hardship may be caused to
the owners concerned in complying with this
regulation for reasons beyond their control
and provided further that such an extension
shall not be granted save in exceptional
cases.
Regulation No. 38 :--Any person contra-
vening any o[ the aforesaid regulations or any
of the provisions of the scheme, shall, on
being convicted for such contravention, be
liable to fine which may extend to Rs. 1,000/-
(One thousand) and in ’the case of continuing
contravention of the aforesaid provisions, he
shall be liable to an additional fine which
may extend to Rs. 10/- (Ten) for each day
during which such contravention continues
after conviction for the first such contraven-
tion.
Section 55 of the Bombay Town Planning
Act, 1954--
(1) On and after the day on which the final
scheme comes into force the local authority
may after giving the prescribed notice and in
accordance with the provisions of the scheme
(a) remove, pull down, or alter any build-
ing or other work in the area included in the
scheme which is such as to contravene the
scheme or in the erection or carrying out of
which any provision of the scheme has not
been complied with;
(b) * * *
(2) Any expenses incurred by the local
authority under this section may be recovered
from the persons in default
624
or from the owner of the plot in the manner
provided for the recovery of sums due to the
local authority under the provisions of this
Act.
(3) If any question arises as to whether
any building or work contravenes a town-plan-
ning scheme, ........ it shall be referred
to the State Government or any officer autho-
rised by the State Government in this behalf
and the decision of the State Government or of
the officer, as the case may be, shall be
final and conclusive and binding on all per-
sons.
Rule 38 made under section 87 of the Bombay
Town Planning Act, 1954---Before removing,
pulling down or altering any building or other
work or executing any work under subsection
(1) of section 55, a local authority shah
serve a notice on the owner or occupier of the
building or work, as the case may be, calling
upon him to remove, pull down or alter such
building or work or execute such work within
such reasonable time as may be specified in
the notice and intimating him the intention of
the local authority to do so on failure to
comply with the requirement of the notice."
The conclusion is, therefore, inescapable that the
direction in the notice (Exh. ’B’) for demolition of the
premises in question which clearly had its genesis in the
aforesaid statutory provisions did constitute an order
within the meaning of clause (hhh) of sub-section (1) of
section 13 of the Bombay Rents Control Act, 1947 and the
appellants’ plea that no statutory rule or bye-law having
been made under the Bombay Act, 1944 and the notice (Exh.
’B’) not being based On any statutory power exercisable by
the Commissioner did not constitute such an order is wholly
untenable.
Re: Point No. 5 :--In face of the findings of the Rent
Courts i.e. Court of Small Causes, Bombay as also of the
appellate Bench of that Court which are courts of special
and exclusive jurisdiction that the premises in question are
required for the immediate purpose of demolition, we think
it is not open to the appellants to raise the point before
us. That apart what is sought to be urged before us cannot
be sustained in view of the fact that the ground specified
in clause (hhh) of sub-section (1) of section 13 of the
Bombay Rents Control Act, 1947 does not stand on the same
footing as the ground specified in its preceding clause
viz. clause (hh). Whereas clause (hh) which. appears to
have been enacted with a view to provide better and more
housing accommodation in the interest of the public relates
to a landlord’s bonafide intention to demolish the building
of his own volition and to erect a new building in its
place, clause (hhh) which was inserted by Bombay Act 61 of
1953 inter alia to prevent a landlord or a tenant from
impeding the town improvement or town planning scheme which
is presumed to be in public interest relates to compulsory
demolition ordered by a local or competent authority. It is
because of this difference that the ground specified in
clause (hhh) is not subject to the conditions and restric-
tions embodied in sub-section (3A) of see-
625
lion 13 and sections 17A, 17B and 17C of the Bombay Rents
Control Act, 1947. It is sufficient to satisfy the re-
quirement of the ground specified in this clause that the
order of demolition is issued by the local or competent
authority in exercise of the powers vested in it and the
order discloses that in the opinion of the local or compe-
tent authority, the premises are required for the immediate.
purpose of demolition.
The statement of P.W. Chitaman Krishnaji Limaya, Sub-
Engineer, Bombay Municipal Corporation made nearly fourteen
years ago to the effect that "the general policy of Corpora-
tion is not to expedite the demolition unless some alterna-
tive accommodation is made for the inmates of the plots
where the constructions are to be demolished" on which
strong reliance is placed on behalf of the appellants has no
relevance for our purpose as the. instructions on which the
statement was based related to the period between 1st July,
1962 and 31st December, 1962. We are, therefore, of opin-
ion that there is no force, in point No.5.
Re: Point No. 6 :--This point needs consideration under
two heads viz. suspension of the Scheme and variation of
the Scheme.
Suspension of the Scheme: It is no doubt true that the
request’ of the Corporation, the State Government has, by
its notification No. TPB 1073/33184 published in the Govern-
ment Gazette dated 25th July, 1974, suspended certain
regulations of the principal Scheme but this suspension has
not the same effect as withdrawal or abandonment of the
scheme which admittedly has not been done. What is more
significant is that there has not been a total or wholesale
suspension of all the regulations by virtue of the aforesaid
notification. On the contrary, the Government has been
careful enough to allow regulations Nos 36 and 38 besides
some others to continue. Thus the regulations which are
material for our purpose having been specifically saved, the
notice (Exh ’B’). is immune from the impact of the aforesaid
notification.
Variation of the Scheme: Though there is a proposal for
variation of the Principal Scheme, the same has not so far
materialized. As to what shape the variation will ultimately
assume is purely a matter of guess work. As such, until it
is actually carried into effect, the proposed variation is
of no legal consequence and the case has to be decided
keeping in view its own facts and circumstances and the
relevant law as at present in existence. In Willow Wren
Canal Carrying Co. Ltd. v. British Transport Commission(1),
it was held that the plaintiffs were entitled to have their
action tried according to law as in force and the court
would not take into account the possible effect of a bill
before the Parliament which may never become a law or if
passed into law may contain provisions which ultimately do
not effect the rights of the parties before the Court.
Re: Point No. 7: --This point is also devoid of merit.
Nothing has been brought to our notice on behalf of the
appellants to show that it is the local authority and not
the landlord who has the power to evict the tenant on the
ground specified in clause (hhh) of sub-section
(1) [1956] 1 All E.R. 567.
626
(1) of Section 13 of the Bombay Rents Control Act, 1947.
Moreover the submission made on behalf of the appellants
conveniently overlooks the provisions of Section 507 of the
Bombay Municipal Corporation Act, 1888 where under the land-
lord can get an order against the tenant to allow him (the
landlord) reasonable facilities to enter the leased prem-
ises in order to enable him to comply with the notice issued
by the Municipal Commissioner.
For the foregoing reasons, there is no merit in any of
the points raised by the appellants. Consequently, the
appeals fail and are hereby dismissed but in view of the
circumstances of the case without any order as to costs.
Respondent No. 1 shall not, however, as agreed to on its
behalf, evict the appellants till the end of the year, 1977
A.D. unless it is required by the Municipal Commissioner at
any time before that date to pull down the premises in
question in implementation of the scheme.
P.B.R. Appeals dismissed.
627