9911796707
TMI Blog1964 (10) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 ₹ 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 buildings 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 ₹ 40,000 as the price thereof to the Company. Out of this amount these defendants had to pay and had actually paid ₹ 10,000 at the time of the agreement. The plaintiffs& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that the action of the defendant No. 1 is mala fide." In the earlier paragraphs the plaintiffs have challenged the validity of ss. 354R and 354RA on the grounds that they confer untrammelled and uncontrolled executive discretion upon the Corporation and its officers and also upon the ground that they are violative of the plaintiffs' rights under Art. 1 9 (1) (f) and (g) of the Constitution. They have not indicated why the making of the clearance order by the Corporation was an abuse of the provisions of the Act. No doubt, later in paragraph 9 they say that the Corporation failed to give a hearing to the plaintiffs and that had they been given an opportunity they would have satisfied the Corporation that the premises in question did not require to be pulled down. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt was quite alive to the requirement of law that party should not be allowed to make out a new case by way of an amendment to the pleading. Dealing with this matter the High Court has observed : "This brings us to the course which we must adopt in the present case and the amendment application. In the plaint, the plaintiff alleged that the order was mala fide and that it was obtained for collateral purposes." The learned Judges were not correct in observing that it was the plaintiffs' case in the plaint that the landlords had obtained the clearance order or that the Corporation had made that order for a collateral purpose. This impression of the High Court seems to be the basis of the rather curious procedure which it chose to follow in this case. Then the High Court referred to the fact that no evidence whatsoever had been led by the plaintiffs before the City Civil Court to the effect that the order was passed fraudulently or for a collateral purpose. It was alive to the fact that in such a case a party should not be allowed to adduce fresh evidence at the appellate stage and much less so at the stage of letters patent appeal. Then it observed : "If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of affording the defendants an opportunity to explain the documents that the High Court remitted the case to the City Civil Court. For, in the concluding portion of its judgment the High Court has directed as follows : "in the result, we remit the case to the City Civil Court for receiving additional evidence as directed by us in the judgment and also to allow evidence on the amendment. We direct that the defendants do file their written statement within three weeks from today, or at such earlier time as they can in answer to the amendment permitted to be made. Discovery and inspection forthwith within a week thereafter. And after this formality is over, the case to be on the board for final hearing for taking evidence on the issue of mala fide and the issues that arise on the amended pleadings between the parties.." This clearly shows that what the High Court has in substance done is to order a fresh trial. Such a course is not permissible under 0. XLI, r. 27, Code of Civil Procedure. The High Court has quite clearly not proceeded under 0. 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 determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows that land values are very high in Colaba and range between ₹ 250 and ₹ 275 per sq. ft., and the landlords could not be reasonably expected to buy land for the purpose. Moreover, there is nothing to show that any vacant building site was available in the neighbourhood of Dhobi Chawls at the relevant time. The High Court observed in its judgment that it was only after the scheme was finally approved by the Corporation, confirmed by the State Government and the final orders made by the City Civil Court became operative that the City Engineer wrote to the Tenants' Association stating that no undertaking was given by the landlord. The High Court had apparently in mind the letter, dated April 1, 1960 sent by the City Engineer to the Tenants Association which is described in the paper book as item No. 38. That letter reads thus "Gentlemen, Reference : your letter No. Nil, dated 19th February, 1960. The landlord of the above mentioned property has undertaken the responsibility of providing alternative accommodation to bona fide residential tenants at standard rent by constructing a building on one of the plots viz., plot No. 7 at the same site. The question of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would cost ₹ 3 lacs and that, therefore, the best thing for the landlords to do was to approach the Corporation for making a clearance order so that they could eventually construct new buildings on the site. According to learned counsel this circumstance, taken with .the fact that there was deliberate avoidance by the landlords and the owners of the Colaba Land Mill Co., Ltd., to comply with the notice of the Corporation to undertake repairs, goes to show collusion between the landlords and the Corporation and that, therefore, it cannot be said that there was no material on record in support of the plea of fraud set out in paragraph 8A. Apart from the fact that the High Court has not referred to this material it is sufficient to observe that though the landlords, may have deliberately allowed the buildings to become unfit 'for human occupation or a danger to the safety of the tenants occupying them, these matters do not indicate any collusion between the landlords and the Corporation. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -not barred by virtue of the provisions of cl. (2) of Schedule GG, because they cannot be said to be "persons aggrieved" by the clearance order. They, therefore, did not have a right to prefer an appeal before a Judge of the City Civil Court, Bombay from that order. He also points out that the Bombay Rents Hotel and .Lodging House Rates Control Act, 1947 has placed restrictions on the right of a landlord of a house situated in an area like the City of Bombay to which the Act extends, to evict a tenant therefrom by enacting in s. 12 that a tenant shall not ordinarily be evicted as long as he pays the standard rent and permitted increases' whatever may have been the duration of his tenancy, under the original agreement. A right conferred by this provision on the tenant exists independently of the landlord's right to own and possess property and this right could not be interfered with or derogated from by the Corporation by making a clearance order behind the back of the tenant. He admits that under cl. (hh) of' sub-s. (1) of s. 13 a landlord will be entitled to recover possession of the premises from the tenant on the ground that they are required by a local aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) provides, among other things, that the Corporation should ascertain the number of persons who are likely to be dishoused in such area and thereafter take such measures as are practicable to ensure that as little hard- ship as possible is inflicted on those dishoused. The resolution is. then required to be forwarded to the State Government. Sub-section (4) provides as follows : "As soon as may be after the Corporation have declared any area to be a clearance area, the Commissioner shall, in accordance with the appropriate provisions hereafter contained in this Act, proceed to secure the clearance of the area in one or other of the following ways, or partly in one of those ways, and partly in the other of them, that is to say- (a) by ordering the demolition of the buildings in the area; or (b) by acquiring on behalf of the Corporation land comprised in the area and undertaking or otherwise securing, the demolition of the buildings thereon." Sub-section (1) of s. 354RA requires the Corporation to submit the clearance order to the State Government for confirmation. Sub-section (4) reads thus : "Before submitting the order to the State Government, the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-s. (4) of S. 354RA but also in his appeal under cl. (2) of Schedule GG. It is 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-s. (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 in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 was the subject of construction in Sharifuddin v. R. P. Sing (1956) I.L.R. 35 Pat. 920.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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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