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

The plaintiffs are some of the tenants occupying different rooms in a group of buildings knwn as Dhobi Chawls (and also known as the Colaba Land Mill Chawls) situate on Lala Nigam Road, Colaba, Bombay. There are a large number of other tenants also who reside or carry on business in these Chawls and the plaintiffs instituted a suit in a representative capacity on behalf of all the tenants. The first defendant to the suit is the Municipal Corporation of Greater Bombay and the remaining defendants 2 to 4 are landlords of the plaintiffs.2. The buildings and the land on which they stand belong to the Colaba Land Mill Co., Ltd., Bombay. Under an agreement dated May 16, 1956 called the Demolition Agreement defendants 2 to 4 undertook for a certain consideration to demolish the buildings which are admittedly in a dilapidated condition after taking the permission of the Rent Controller, Bombay. Under cl. 7 of that agreement defendants 2 to 4 were to be put in possession of the buildings and land on which they stand, with leave and licence of the Company and were liable to pay Rs. 20,221-8-0 p. a. to the Company till the demolition of the buildings and thereafter they were to hold the land as tenants at will of the Company. Until the demolition of the buildings, defendants 2 to 4 were entitled to the rents payable by the tenants occupying the building and were liable to pay monthly taxes, insurance premia and other dues payable in respect of the buildings. After the demolition of the buildings defendants 2 to 4 were entitled to all the materials and debris but had to pay Rs. 40,000 as the price thereof to the company. Out of this amount these defendants had to pay and had actually paid Rs. 10,000/at the time of the agreement.3. The plaintiffs contention is that the buildings were in a dilapidated condition for a number of years and that between August 1951 and May 1956 as many as 138 notices were served on the Company for effecting repairs to the buildings but they took no action whatsoever in this regard. The plaintiffs further say that between November 1956 and January 29, 1960, eleven notices were served on defendants 2 to 4 for the same purpose but no action was taken by them either on those notices. Further the Company and defendants 2 to 4 were prosecuted 71 times for not complying with the notices but even these prosecutions proved ineffective. Their contention is that the Company as also defendants 2 to 4 deliberately refrained from carrying out the repairs because they wanted to demolish the buildings and in order to facilitate the attainment of this object they invited various notices issued by the Corporation and the prosecutions launched by it.4. The plaintiffs admit that the Corporation, in exercise of the powers conferred by S. 354R of the Bombay Municipal Corporation Act, 1888 (hereafter referred to as the Act) have declared the area in which the buildings stand as a clearance area and under S. 354RA of that Act made a clearance order which has been duly confirmed by the State Government. According to them, however, these provisions are ultra vires of Art. 19 (1) (f) and (g) of the Constitution. Further, according to them the first defendant has abused the provisions of the Act and that the action taken by it is mala fide. No particulars of mala fides have, however, been set out in the plaint.5. The defendants denied that the aforesaid provisions are ultra vires and also denied that the Order was made mala fide. They further contended that the present suit was barred by virtue of the provisions of cl. (2) of Schedule GG to the Act and was also barred by time.6. The trial court dismissed the suit mainly upon the ground that it was not tenable. An appeal was taken by the plaintiffs to the High Court which was dismissed summarily by Datar J., on August 25, 1961. On the same day the plaintiffs preferred an appeal under the letters patent which went up before a Division Bench consisting of Patel and Palekar JJ. The learned Judges permitted the plaintiffs to amend the plaint overruling the objections of the defendants. In their judgment the learned Judges held that the suit was not barred. Then they proceeded to consider the question of mala fides. According to them the plaintiffs had pleaded mala fides but that they had omitted to give particulars. They also observed that it was true that no evidence was led by the plaintiffs before the trial court and ordinarily they would not have been entitled to lead fresh evidence at that stage, much less so at the stage of the appeal under letters patent. According to them, however, it is not possible to dispose of the case on the material on record, that there are certain documents on record which, if unexplained, "support in a large measure the contention of the plaintiffs that defendants 2, 3 and 4 obtained an order by fraud and also that the order was mala fide." After referring to some of these documents they observed: Though therefore no evidence is led on the question of mala fides or fraud committed upon them, it prima facie leads to such an inference, and it would not be proper to decide the question without requiring further evidence." This observation was followed by another which we think, is a very unusual one. It is this: "We particularly want the commissioner and the City Engineer and the defendants to be examined on this question." Eventually, the learned Judges remitted the case to the City Civil Court for recording additional evidence and directed that court to certify the evidence and its findings by the end of November, 1962. After the grant of special leave to the appellants the proceedings before the City Civil Court have been stayed.

Reasoning:
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.