Case: Muncipal Corporation For Greater Bombay Vs. Lala Pancham Of Bombay &amp; Others

the instance of persons who would be affected by the order. Since tenants would be affected by it, they fall an this class. It is true that cl. (b) of that provision contemplates actual service of notice only on the persons primarily liable to pay property tax and on the mortgagees of the property but not on others and also says that the time within and the manner in which objections to the order could be made to the Commissioner should also be specified but it does not say anything regarding the tenants. But if because of this we were to hold that it would not be open to a tenant or any other person who would be affected by the order, to lodge an objection to the proposed order it would be making the publication of notice practically meaningless. Undoubtedly tenants are persons who would be affected by the Order. Sub-section (2) of Section 354R casts certain duties upon the Corporation with respect to the persons who are likely to be dishoused in consequence of the clearance order. It would, therefore, be legitimate to infer that a corresponding right was conferred upon the tenants to secure the performance of its duties towards them by the Corporation. This right would be in a addition to their interest in the property itself. They must, therefore, be held to be persons who are entitled to lodge an objection to the proposed order. Mr. Shroff, however, contends that cl. (b) of sub-section (4) of S. 354RA confines the right to lodge an objection only to the persons specified in that clause and that there is nothing in the language of cl. (a) from which a similar right can be deduced in favour of other persons. It seems to us that in order to give full effect to the provisions of both cls. (a) and (b) of sub-s. (4) the words and specifying the time within and manner in which objections thereto can be made to the Commissioner occurring at the end of cl. (b) should be read as governing not only the rest of cl. (b) but also cl. (a). We would not be re-writing the Section if we did so because if the object of the legislature was to give a right to lodge objections only to the persons specified in cl. (4) (b), sub-s. (5) would not have said that the Commissioner shall submit to the Improvements Committee the objections received under subsection (4), but would have said instead objections received under cl. (b) of sub-s. (4)".21. That a right has been conferred upon a tenant to lodge an objection is made further clear by the provisions of cl. (2) of Schedule GG which we have earlier reproduced. The expression "any person aggrieved" is sufficiently wide to include not only a tenant but also an occupant of a building who is likely to be dishoused as a result of the action taken under a clearance order." The expression person aggrieved" has not been defined in the Act and, therefore, we are entitled to give it its natural meaning. The natural meaning would certainly include a person whose interest is in any manner affected by the order. We are supported in this by the observations of James L. J., in Ex parte Sidebotham; In re Sidebotham, (1880) 14 Ch D 458 at p. 465. A similar expression occurring in S. 24(1) of the Administration of Evacuee Property Act, 1950 was the subject of construction in Mahammad Sharifuddin v. R. P. Singh, (S) AIR 1957 Pat 235 . The learned Judges there held that these words are of the widest amplitude and are wide enough to include an Assistant Custodian of Evacuee Properties.22. Since the right conferred by cl. (2) of Schedule GG upon an aggrieved person is a right to prefer an appeal against a clearance order, as confirmed by the Government, before a Judge of the City Civil Court, Mr. Shroff contends that the words "aggrieved person" therein must necessarily mean a person who was a party to the order. It is true that ordinarily a right of appeal is conferred on a person who is a party to the proceeding but that would be so only where the proceeding is between certain parties. A proceeding of the nature contemplated by S. 354R is not, strictly speaking, a proceeding between the parties ranged on opposite sides. What is contemplated is the exercise of certain powers by the Corporation which will affect the interests of a variety of persons or a class or classes of persons and cl. (2) of Schedule GG gives a right to any of them to prefer an appeal if his legal right or interest is affected by any action of the Corporation taken in pursuance of its powers.23. Upon a reasonable construction of Section 354RA and Schedule GG it must therefore, be held that they afford opportunities to tenants to object to the clearance order. It follows from this that the restrictions on the tenants right to hold property enacted by Ss. 354R and 354RA are not unreasonable and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that these provisions are unconstitutional must fail.24. Upon the view then that these provisions are valid it must further follow that it was open to the plaintiffs to prefer an appeal before a Judge of the Civil Court. Finality is given to a clearance order after its confirmation by the Government and its publication in the manner prescribed in cl. (2) of Schedule GG subject only to the result of an appeal preferred under cl. (2) of Schedule GG by a person aggrieved. If no such appeal is preferred or if such appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing with the learned City Civil Court Judge we hold that the plaintiffs suit was not maintainable.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]While therefore, it is true that the plaintiffs have characterised the action of the Corporation as "mala fide" the grounds upon which the action is characterised as mala fide appear to be (a) the unconstitutionality of the provisions of S. 354R and 354RA and (b) failure of the Corporation to give an opportunity to the plaintiffs to satisfy its officers that the premises did not require to be demolished. By the amendment made by them in pursuance of the order of the High Court they have shifted their ground by saying that the landlords have fraudulently and wrongfully induced the Corporation to make the order and plead alternatively that as the landlords have denied their responsibility to provide accommodation to all the tenants in the new building intended to be constructed on the site, a clearance order could not properly be made by theappears to be good foundation for what Mr. Setalvad says but merely because an amendment was sought by the plaintiffs at the suggestion of the court it would not be proper for us to disallow it unless there are grounds for holding that it was forced upon an unwilling party. That is, however, not the suggestion. For, the court wanting to do justice may invite the attention of the parties to defects in pleadings so that they could be remedied and the real issue between the parties tried. There is, however, an other ground and a stronger one which impels us to hold that the amendment should never have been allowed. That ground is that the plaintiffs are now making out a case of fraud for which there is not the slightest basis in the plaint as it originally stood. The mere use of the word mala fide in the plaint cannot afford any basis for permitting an amendment. The context in which the word mala fide is used in the plaint clearly shows that what the plaintiffs meant was that the order of the Corporation having been made in exercise of arbitrary powers and having the result of adversely affecting the plaintiffs right under Art. 19(1) (f) and (g) of the Constitution amounted to an abuse of the provisions of the Act and was thus made malaclearly shows that what the High Court has in substance done is to order a fresh trial. Such a course is not permissible under O. XLI, R. 27,Code of Civil Procedure. The High Court has quite clearly not proceeded under O. XLI, R. 25 because it has not come to the conclusion that the City Civil Court had omitted to frame or try an issue or to determine the question of fact which was essential to the right decision of a suit. For, the High Court has not indicated which issue was not tried by the trial Court. If the High Court meant that the necessary issue had not been raised by the trial court though such issue was called for in the light of the pleadings, the High Court is required under this rule to frame the additional issue and then remit it for trial to the City Civil Court. Finally, this is not a case which was decided by the trial court on any preliminary point and, therefore, a general remand such as is permissible under R. 23 could not be ordered.We are, therefore, of the view that the High Court was in error in allowing the amendment to the plaint and in remitting the suit to the trial court for a virtual retrial. The High Court however, did not rest content with this order but further directed "we particularly want the Commissioner and the City Engineer and the defendants to be examined on this question -the question being the breach of an assurance given to the tenants. In making this direction the High Court may have been actuated by a laudable motive but we think it ought to have borne in mind the limits which the law places upon the powers of the court in dealing with a case before it. Just as it is not open to a court to compel a party to make a particular kind of pleading or to amend his pleading so also it is beyond its competence to virtually oblige a party to examine any particular witness. No doubt, what the High Court has said is not in terms a peremptory order but the parties could possibly not take the risk of treating it otherwise. While, therefore, it is the duty of a court of law not only to do justice but to ensure that justice is done it should bear in mind that it must act only according to law, not otherwise.We have no doubt that a tenant has both under the Transfer of Property Act and under S. 12 of the Bombay Rents, Hotel and Lodging House Rates Control, Act, 1947 an interest in the demised premises which squarely falls within the expression property occurring in sub-cl. (f) of cl. (1) of Art. 19 of the Constitution. The right which a tenant enjoys under this sub-clause is, however, subject to the provisions of cl. (5) of Art. 19 which, among other things, provides that the right recognised by the sub-clause does not affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses in the interests of the general public. The Bombay Municipal Corporation Act was admittedly an existing law at the date of the commencement of the Constitution but Ss. 354R to 354RA were substituted for the earlier provisos by S. 18 of Bombay Act 34 of 1954. So what we have to ascertain is whether the law as it stands imposes a reasonable restriction on the tenants right to hold the demised premises. For this purpose we will have to examine the provisions of the Act which empower the Corporation to make a clearanceis no doubt true that there is no express mention of tenants in either of these provisions but from the fact that cl. (a) of sub-section (4) of S. 354RA requires the publication of the clearance order it would be reasonable to infer that the object of doing so is to invite objections at the instance of persons who would be affected by the order. Since tenants would be affected by it, they fall an this class. It is true that cl. (b) of that provision contemplates actual service of notice only on the persons primarily liable to pay property tax and on the mortgagees of the property but not on others and also says that the time within and the manner in which objections to the order could be made to the Commissioner should also be specified but it does not say anything regarding the tenants. But if because of this we were to hold that it would not be open to a tenant or any other person who would be affected by the order, to lodge an objection to the proposed order it would be making the publication of notice practically meaningless. Undoubtedly tenants are persons who would be affected by the Order. Sub-section (2) of Section 354R casts certain duties upon the Corporation with respect to the persons who are likely to be dishoused in consequence of the clearance order. It would, therefore, be legitimate to infer that a corresponding right was conferred upon the tenants to secure the performance of its duties towards them by the Corporation. This right would be in a addition to their interest in the property itself. They must, therefore, be held to be persons who are entitled to lodge an objection to the proposed order. Mr. Shroff, however, contends that cl. (b) of sub-section (4) of S. 354RA confines the right to lodge an objection only to the persons specified in that clause and that there is nothing in the language of cl. (a) from which a similar right can be deduced in favour of other persons. It seems to us that in order to give full effect to the provisions of both cls. (a) and (b) of sub-s. (4) the words and specifying the time within and manner in which objections thereto can be made to the Commissioner occurring at the end of cl. (b) should be read as governing not only the rest of cl. (b) but also cl. (a). We would not be re-writing the Section if we did so because if the object of the legislature was to give a right to lodge objections only to the persons specified in cl. (4) (b), sub-s. (5) would not have said that the Commissioner shall submit to the Improvements Committee the objections received under subsection (4), but would have said instead objections received under cl. (b) of sub-s. (4)".Upon a reasonable construction of Section 354RA and Schedule GG it must therefore, be held that they afford opportunities to tenants to object to the clearance order. It follows from this that the restrictions on the tenants right to hold property enacted by Ss. 354R and 354RA are not unreasonable and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that these provisions are unconstitutional must fail.24. Upon the view then that these provisions are valid it must further follow that it was open to the plaintiffs to prefer an appeal before a Judge of the Civil Court. Finality is given to a clearance order after its confirmation by the Government and its publication in the manner prescribed in cl. (2) of Schedule GG subject only to the result of an appeal preferred under cl. (2) of Schedule GG by a person aggrieved. If no such appeal is preferred or if such appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing with the learned City Civil Court Judge we hold that the plaintiffs suit was not maintainable.