# VELJI LAKSHMI & CO. ETC v. BENEIT COLEMAN & CO. ETC

- **Citation:** [1977] 3 S.C.R. 603
- **Court:** Supreme Court of India
- **Decided:** 1977-04-14
- **Bench:** R. S. Sarkar!A, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/velji-lakshmi-co-etc-v-beneit-coleman-co-etc-7214
- **Pages:** 24

## Headnote

Bornbay Municipal Corporation Act, 1888-Respondents given permission
to raise teniporary structures on land on condition tl1at they should be pulled
down when called upon to do so-Pren1ises let out to appellant-Municipal
Comn1issioner 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 te1nporary ActJj survive after expiry of the Act.
A
B
c
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
construction v.1ork in the area might be carried out on modern lines, the Bombity
Municipal Corporation formulated a scheme under the provisions of the Bombay
. Town Planning Act, 1915 to restrain the owners of the land fron1 re-constructing
D
in a haphazard manner in the devastated area. The Governor of Bombay by
a proclamation issued under s. 93 of the Government of India Act.
1935,
enacted the City of Bombay (Building, Works and Reconstruction) Act, 1944.
Section 3 of the 1944-Act prohibited for a period of one year from the
date of the commencen1ent of the Act. the work of erecting, constructing, reconstructing, etc.
of any building, wall or other structure situate within the
specified area except under the written permission of the Commissioner and in
E
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 o·wnership of the building 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 ten1porary
godowns on the land on condition that the Commissioner might at any time
F
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 appe1Iant
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 TI>wn Pianning
Bombay City No. I scheme under the Bombay Town Planning Act, 1954 and
the scheme came into operation on December l, 1957.
The final scheme
G
became a part and parcel of the Bombay Town Planning Act 1954.
ResporuJ.;~nt
No. l issued a notice to the appellant calling upon it to quit and give vacant
possession of the godown leased out to it.
On September 19, 1953, the Municipal Cdrnmissioner, Greater Bombay, issued a notice (Exhibit B) to respondent
No. 1 calling upon it to pull down and remove the entire building for the construction of Vv'hich permission was granted to it in 1947.
Respondent No. 1,
in turn, iss"q.ed 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 r~quired
H
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
SUPREME COURT REPORTS
(1977] 3 S.C.P..
A
The trial court ordered the appellant's eviction and delivery of immediate
possession of_ t{ie premises to respondent .No. 1.
The appellate court allowed
the appellant's appeal.
The High Court set aside the decree of the appellate
court.
B
c
D
E
F
G
H
On appeal it was contended by the appellants that (i) the 1944-Act being c:
tempo~ary Act, lapsed on the expiry o~ two years. from April, 1946 and so the
Comm1ss1oner v.1a.s not competent to issue Exhibit B-Notice or to take step~:;
to enforce the conditions imposed by him under s. 3 \vhile granting written
permission to con

## Text

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j
603
VELJI LAKSHMI & CO. ETC.
v.
BENEIT COLEMAN & CO. ETC.
April 14, 1977
[R. S. SARKAR!A AND JASWANT SINGH, JJ.J
Bornbay Municipal Corporation Act, 1888-Respondents given permission
to raise teniporary structures on land on condition tl1at they should be pulled
down when called upon to do so-Pren1ises let out to appellant-Municipal
Comn1issioner 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 te1nporary ActJj survive after expiry of the Act.
A
B
c
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
construction v.1ork in the area might be carried out on modern lines, the Bombity
Municipal Corporation formulated a scheme under the provisions of the Bombay
. Town Planning Act, 1915 to restrain the owners of the land fron1 re-constructing
D
in a haphazard manner in the devastated area. The Governor of Bombay by
a proclamation issued under s. 93 of the Government of India Act.
1935,
enacted the City of Bombay (Building, Works and Reconstruction) Act, 1944.
Section 3 of the 1944-Act prohibited for a period of one year from the
date of the commencen1ent of the Act. the work of erecting, constructing, reconstructing, etc.
of any building, wall or other structure situate within the
specified area except under the written permission of the Commissioner and in
E
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 o·wnership of the building 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 ten1porary
godowns on the land on condition that the Commissioner might at any time
F
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 appe1Iant
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 TI>wn Pianning
Bombay City No. I scheme under the Bombay Town Planning Act, 1954 and
the scheme came into operation on December l, 1957.
The final scheme
G
became a part and parcel of the Bombay Town Planning Act 1954.
ResporuJ.;~nt
No. l issued a notice to the appellant calling upon it to quit and give vacant
possession of the godown leased out to it.
On September 19, 1953, the Municipal Cdrnmissioner, Greater Bombay, issued a notice (Exhibit B) to respondent
No. 1 calling upon it to pull down and remove the entire building for the construction of Vv'hich permission was granted to it in 1947.
Respondent No. 1,
in turn, iss"q.ed 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 r~quired
H
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
SUPREME COURT REPORTS
(1977] 3 S.C.P..
A
The trial court ordered the appellant's eviction and delivery of immediate
possession of_ t{ie premises to respondent .No. 1.
The appellate court allowed
the appellant's appeal.
The High Court set aside the decree of the appellate
court.
B
c
D
E
F
G
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On appeal it was contended by the appellants that (i) the 1944-Act being c:
tempo~ary Act, lapsed on the expiry o~ two years. from April, 1946 and so the
Comm1ss1oner v.1a.s not competent to issue Exhibit B-Notice or to take step~:;
to enforce the conditions imposed by him under s. 3 \vhile granting written
permission to con§truct the p~e.rnises.
(ii) The Municipal Commissioner bavin.g
ceased to have statutory existence on the expiry of the 1944-Act
Exhibit
B-notice was a nullity, (iii) Eveh assuming that the Municipal Co~missioner
did not become non est on the expiry of the 1944·Act, the notice was ineffective
beca'!-lse s. 489 of the Bombay Municipal Corporation Act, 1888 envisage:s
the issue of a notice only for giving effect to the requisition or order 1nade
under the sectlon. (iv) No statutory rule or bye.Jaw having been made uride~r
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 satisfied that the
demolition \Yas imminent and the evidence led in this case showed that the
premises were not required for immediate demolition; (vi) The final schen1e
having been :suspended a.nd varied, there was no subsisting order and since
there was no urgency for the demolition of the pren1ises, invocation of s. 13 ( L)
(hhh) was not called for and (vii) Exhibit B· notice was ineffective because
under the Tov,'n Planning Acts of 1915. 1954 or 1966, it was the local author1ty
and not the landlord that had th~ power to evict.
Dismissing the appeals,
HELD : 1. (a) There is no force in the contention that the Municipal Com·
missioner was not competent to
is:~nc Exhibit B·notice.
The provisions -of ss.
3 and 8 of the 1944·Act Were permanent as to the restrictions, rights and obligations imposed, acquired or incurred thereunder.
A fortiori, the rights acquired
by the Municipal Commissioner by vi._-tue of the express conditions in1po·~ed
by him while granting Exhibit A permission, \Vere not subject to a time limit
and did not lapse with the expiry of the Act. [621 E; 620 HJ
(b) The analogy of the rule that criminal proceedings taken ~ainst a
person for offences committed under a
temporary statute will
ipso facto
terminate wb.en the temporary statute expired cannot be extended to rights
and liabilities as in the instant case.
It ts settled la0w that transactions con·
eluded and completed under a temporary statute, while the same was in fo·rce,
often endure anJ 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 a11d Reasons was
designed to prevent the growth of buildings in a haphazard fashion \\·hich
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 p\1)t in
question, authorised the Municipal Commissioner to impose such conditiqns as
he might think fit to specify while grantin_g 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 \Vould be pul1ed 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 tlo"';ng from the conditions subject to which the
permission to build was granted to the respondents were annexed to the own~r~
ship of th~: building for a1l time to come and were not limited to the duration
of the 1944-Act. [620 E-G]
S'ale of Orissrl v. Bh11pendra K11mar Bose [1962]
2 Supp. S.C.R. 380.
followed.
VELJJ LAKSHMI & CO. V. BENETT COLEMAN & CO.
605
S. Krishnan and Ors. v. The State of Madras (1951] SCR 621, The State
A
of Uttar Pradesh v. Seth Jagamandar Das and Ors. A.I.R. 1954 S.C. 683
and Gopi Chand v. The Delhi Administration (1959]
Supp. 2 SCR 87 distinguished.
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, referred to.
2. Though the 1944-Act was a temporary Act, the Commissioner did not
cease to exist with th(f expiry of that Act.
The 1944-Act was supplemental to
B
the Bombay Municipal Corporaticn 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
Jif~ of th~ 1944-Act.
[621 F-GJ
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 Bnotice was purported to have been issued_ under s. 489 of the 1888-Act, it was
really issued under Special Regulation 36 which beca1ne a part and parcel of
C
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, therefore, issued under the Special Regulation No. 36. [622 A BJ
(b) The fact that reference to s. 489 of the 1888-Act was erroneott.,Iy or
incorrectly made in the notice, was inunaterial.
It is settled Jaw 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 exercise of the power in
question.
(622 C-D]
Afzal Ullah v. The State of Uttar Pradesh (1964] 4 SCR 991 1000; /. 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] I SCR
138, 149 referred to.
D
4. The direction in Exhibit B~notice for demolition of the premises clearly
had its origin in the statutory provisions and it constituted an order within the
meaning of s. 13(1)(hhh) of the 1947-Act.
The Municipal Commissioner
E
had plenary puwer under s·. 3 of the 1944-Act to authorise the construction of
a•ny building or structure in the area subject 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 ten1porary 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 pre1nises
were required for the immediate purposes of demolition, it was not open to
F
the appellants to raise the point at this stage. [624 F]
(b) There is a vital difference between els. (hh) and (hhh) of s. 13(1).
While cl. (hh) relates to the landlords bona fide intention to demolish the build-
. ing 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 con1petent authority and
\Vas ain1'!d 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
G
conditions and restrictions in s. 13(3A) and ss. 17A, 17B and 17C of the
1947-Act.
[624 HJ
(c) The statement of the Sub-Engineer that the Corporation would not
expedite demolition without making alternative acco1nn1odation on which the
~'Ppellant 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 \\:ithdra\val or
abandonment of the scheme, '''hich had not been done.
Moreover, there had
12-502 SCI/77
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606
SUPREME COURT REPORTS
[1977] 3 S.G.R.
A
not been a· total suspension of all the regulations.
Regulations 36 an<l 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 mate-
\..
rialised, it was not known what shape it \vould assun1e.
Until it was actually
B
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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 a.uthority and not the
landlord who had the power to evict a tenant on the ground specified in s. 13 (1)
(bhh) 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 HJ
CIVIL APPELLATE JuruSDICT!ON : 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. Sabia, P. B.
Agarwal and B. R. Agarwala for the Appellant.
F. S. Nariman, H. C. Tunara and K. l. 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 judgment 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. 5355133
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
•
. ,
VELJJ LAKSHMI & CO. V. BENETT COLEMAN & CO.
607
(Jaswant Singh, !.)
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 Government of India Act, 1935 in either
chamber of the Provincial 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 sub}ect 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 dat•e 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 Carnac 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
Commissioner and in accordance with such conditions, if any, as the
Commissioner might think fit to specify in the permission.
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 building
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 ownership of the building, wall 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 \he then Governor
General
revoking the aforesaid proclamation dated 4th November, 1939 as
subsequently varied by the proclamations dated the 15th February,
1943 and 20th November, 1945.
Section 93 of the Government of
India Act, 1935 under which the proclamations 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 constitutional machinery.
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(1) If at any time the Governor of a Province is satisfied
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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 :
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SUPREME COURT REPORTS
(1977] 3 S.C.R.
(a) declare that his functions shall, to such extent as may
· be specified in the Proclamation 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 necessary or desirable for giving effect to the
objects of the Proclamation, including proV'isions for
suspending in whole or in part the operation of any
provisions of this Act relating 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 suspend, either in whole
or in
part,
the operation of any provision of this Act relating 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 further 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 thereof, continue to
have effect until! two years have elapsed from the date on
which the Proclamation ceases to have effect unless sooner
repealed or re-enacted by Act of the appropriate Legislature,
and any refer·ence 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 Gnvernor under this section
shall be exercised by him in his discretion and no Proclama-
)
,_
fl'.
VELJI LAKSHMI & CO. v. BENETT COLEMAN & CO.
609
(Jaswant Singh, J.)
lion shall be made by a Governor under this section without
the concurrence of the Governor General in his discretion".
On 23rd September, 194 7, 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, Masii?
Siding Road, Bombay subject inter alia to the following express conditions
"(a)
(b)
(c)
(d)
The provisions of the Municipal Act and bye-laws
made thereunder in force from time to time shall be
complied with;
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 prercribe.
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).
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.
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.I 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 Mis
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 conditions with the result that it continued to remain in occupation of the
premises.
On 4th September, 1957, the Gov·ernment 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
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SUPREME COURT REPORTS
[1977] 3 s.c.R.
September, 1957 declaring that the land on which the snit premises
stood was affected by the said Scheme. It may be mentioned
that
nuder 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 special regulations were also made by the arbitrator to
control development of the ·area included In the Scheme.
On 10th
September, 1957, 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, Greater Bombay, issued the following
notice (Exh. 'b') to respondent No. 1 :-
"The Bombay Municipal Corporation Bombay Town Planning Act, 1954 Town Planning Scheme Bombay City No. 1.
To
Notice No. FE/221
The Times of India
Owner : Original Plot No. 3 7 Elphinstone Estate
Section.
E
WHEREAS the Government of Bombay has ·been pleased to sanction the above scheme under section 51 of the Bombay Town Planning Act, 1954 (XXVIl of 1955) on th11
4th September, 1957 and to fix the Ist December, 1957 as
the dare on which the scheme shall come into operation AND
WHEREAS the Notification relating to such sanction has
been published under No. TPB-1054-M. Local Self. GovernF
ment 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 Ist December. 1957 the rl"te notified by
Government in their above notification AND WHEREAS
yon are aware that the land delineated in the Scheme Plans
G
(which may be inspected, if necessary at the office of the
City Engineer.
Town Planning Scheme No.1
Bombay
Municipal Corporation) upon which yonr 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
H
are permitted under the City of Bombay (Building 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
;
VELJI LAKSHMI & CO. V. BENETT COLEMAN & CO.
611
(Jaswant Singh, J.)
.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. 5211520/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 without 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 expressly
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 Mis 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
Mis Velji Lakhamsi & Co. on four grounds viz. (a) that it was
in
arears of rent from Ist November, 1959 at the rate of Rs. 2,500/-
p.m., (b) that the premises were requ'red 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 subleting.
On M/s Velji Lakhamsi & Co.'s failure to comply with respondent No. l'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
R!onts (Hotel and Lodging Houses Rates) Control Act, 1947 (hereinafter referred to as 'the Bombay Rents Control Act, 194 7') for the
immediate purpose of demolition ordered by the Local Authority i.e.
the Town Planning Authorities and the Bombay Municipal 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 profits and
costs. Mis 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.
A
B
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B
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612
SUPREME COURT REPORTS
[1977] 3 S.C.R.
The suit was contested by the appellants inter alia on the grounds
that respondent No. l's aforesaid notices to quit were not valid; that
they were not bound by any undertaking given by respondent No. 1
to the Municipal Corporation; that the aforesaid notice (Exh. 'B')
!given by the Municipal Corporation to respondent No. l did not subsist in view of the fact that the aforesaid scheme having been kept in
abeyance, the Corporation did not propose to take immediate 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 respondent No. 1 was far in excess of the standard
rent.
On the pleadings of the parties, the trial court framed
the
following issues :-
"!. Is' the tenancy of defendant No. 1 not properly terminated ?
·
2. Do plaintiffs prnve 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
con.tentions raised by the appellants and decreed the suit and ordered
the appellants to deliver possession of the suit premises to respondent
No. l by 11th September,. 1964, holding !hat 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 (hbh) relates to forcible demolition ordered
by
the local authority or by a competent authority whose powers an~ not
hampered in any way by the provis;ons of the Rent Act; that if the
local authority issued a notice that the premises are required for the
purpose of d•emolition, 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 pro\<isions of the Rent
Act, and whenever such a notice was issued, the purpose would have
to be taken to be immediate 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 Commissioner 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 pre ..
ferred 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 observations that the conditions which
the Commissioner laid down in the written permission
(Exh. 'A')
•
VELJI LAKSHMI & CO. V. BENETT COLEMAN & CO.
613
(!aswant Singh, !.)
granted under section 3 of the Bombay Act, 1944 (made by the GoA
vemor under the proclamation dated 4th November, 1939) were not
analogous to statutory mies 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 conditions mentioned in Exhibit 'A' which also lapsed on the expiry
of the Act and as the notice (Exh. 'B') by the Municipal Commissioner
B
to respondent No. 1 was not under any statutory power exercisable
by him but was given nnder 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 snit premises.
The appellate Bench, however, held that there was no substance in
the argument advanced on behalf of the appellants that the
final
C
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 Mis Velji
Lakhamsi & Co. to vacate the premises would be for the immediate
D
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 there of the trial Court holding that the
E
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 Commissioner granted any ~rmission to build
some work subject to certain conditions which he conld 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 legitimately contended that the person who contravened the conditions by which he
F
was bound could not be dealt with under sections 5 and 6 of the Act;
that the mere fact that respondent no. 1 had agreed to the e-0nditions
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 ~rmission stood, the Commissioner could
have called upon respondent No. 1 to remove the same; that the ComG
missioner was within his powers t6 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 (I)
(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 :-
H
"It may be that the town planning scheme is in abeyance
for the very fact that persons like Mr. Bhatt's clients
are
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614
SUPREME COURT REPORTS
(1977) 3 S.C.R.
obstructing eviation 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 landlord is entitled to
recover possession as the premises are required for the imme.-
·diate purpose 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 authorities 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 nO!I:
be called in aid by respondent No. 1 as the elements of that clauoo
were not at all satisfied.
Elaborating 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 fapsed on. the expiry
of two years commencing from 3rd April, 1946 on
which the aforesaid 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 permission (Exh. 'A') to construct
the premises in question.
They have, in snpport of
their submission, invited our attention to the decisions
of this Court in S. Krishnan and Ors. v. The SYite
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
oeased to have a statutory existence on the expiry of
(
,
VELJI LAKSHMI & CO. V. BENETT COLEMAN & CO.
615
(Jaswant Singh, J.)
the Bombay Act, 1944, the nottce, Exh. ('B') was a
A
(3)
nullity.
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 s•ection 489 of the Bombay
Municipal Corporation Act, 1883 under which
it
purports to have been issued envisages the issue of a
notice only for giving effect to the requisition 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 exercisable 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.