TaxTMI 
TaxTMI 
1977 (4) TMI 183
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.... 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 it 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 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....
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....5, 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. (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: (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 exercised 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 provisions 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 power....
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.... 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 Section 489 (I) (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 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. 4. Below the permission so granted, it was endorsed on behalf of the respondents that the above conditions were agreeable to them. 5. Pursuant to the aforesaid permission, the respondents erected some godowns, one of which godown No. 2 was leased out by them to appellant No. 1 on 21st December, 1953 for....
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....ublic Health Department at page 2611 of Part 1 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, 1957 the date notified by Govern- ment 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 Planning 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 (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 work when- ever 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....
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.... 1960 as also for further mesne profits and costs. Appellant No. 2 herein being in possession through appellant No. 1 of a part of the premises as a sub tenant, it was also impleaded by the respondents as a defendant to the suit. 8. The suit was contested by the appellants inter alia on the grounds that the respondents' aforesaid notices to quit were not valid; that they were not bound by any undertaking given by the respondents to the Municipal Corporation; that the aforesaid notice (Exh.'B') given by the Municipal Corporation to the respondents 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 appellant No. 1 by way of arrears of rent and that Rs. 2500/- p. m. claimed by the respondents 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 authoriti....
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....ter having lapsed on 3rd April, 1948, the Commissioner ceased to have statutory authority to call upon the respondents 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 to the respondents was not under any statutory power exercisable by him but was given under the contract between him and the respondents, it could not be called an order within the meaning of Section 13(i)(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 substance in the argument advance on behalf of the appellants that the final scheme having been kept in abeyance, the requirement of the respondents 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 the respondents called upon appellant No. 1 to vacate the ....
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....pone 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 the authorities in enforcing the town planning scheme, it cannot be said that he does not require the premises for the purpose of demolition. 11. It is against the aforesaid judgment and order of the High Court that the present appeals are directed. 12. Appearing in support of the appeals, Mr. Patel and Mr. Bhatt, learned Counsel for the appellants Nos. 1 and 2 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 strenuously 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 the respondents as the elements of that clause were not at all satisfied. Elaborating their contention, the learned Counsel have canvassed the following points: ....
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....local authority 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 brock no delay. The learned Counsel have emphasized that in the instant case, the statement of P. W. Chitaman Krishnaji Limaya, 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 accommodation 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 suspended and varied, there was no subsisting order and the requirement of the premises by the respondent could not be said for the immediate purpose of demolition ordered by the local authority so as to permit the invocation of Clause (hhh) of Sub-section (1) of Section 13 of the Bombay Rents Control Act, 1947. (7) That the notice (Exh. 'B') is ineffective as under the Town Plannin....
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....ure and character of the rights and liabilities. The following observations at the 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 Franke B in Steavenson v. Oliver (1841) 8 M. & W. 234. 'There is a difference between temporary statutes as and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they have never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction. 16. 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. 17. We are also fortified in our view by the decision of this Court in State of Orissa v. Bhupend....
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....ct what ever 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. (underling is ours) 18. In arriving at his conclusion, the learned Judge relied on Steavenson v. Oliver 151 E.R.1024 and Warren v. Windle (1803) 3 East 205,202 E.R. K.B. 578. Steavenson v. Oliver (supra) related to 6th Geo 4, c. 133, Section 4 whereof provided that every person who held a commission or warrant as surgeon or assistant surgeon in his Magesty'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, 1926. 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 1926, 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 perso....
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....sory, 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 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 army, 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, 1926, 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....
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.... 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, scrutinize the provisions of the temporary statute in question viz., the Bombay Act, 1944 which has long since expired and the permit (Ex. A) to ascertain as to whether the restrictions, rights and obligations arising from any part of it endured and survived alter the expiry of the Act. The Act, 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 aforesaid area devastated by explosions. Section 3 of the Act which related to the imposition of restrictions ox. 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 sepecy while granting permission for construction of a building or a structure. In the instant case, the Municipal Commissioner gave permission to the respondents to build on the plot in question subject to the express condition that the struc....
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.... under the Preventive Detention (Amendment) Act of 1951 and is not germane to the point under consideration. 24. Consequently we have no hesitation in holding that there is no merit in the appellants' plea that Municipal Commissioner, Greater Bombay was not competent after the expiry of the Bombay Act, 1944 to issue the notice (Exh. 'B') to the respondents calling upon them to demolish the premises in question. 25. 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 appellants is there fore, repelled. 26. Re. Point No, 3: There is no substance in this point as well. ....
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.... ground as has been held by this Court in J. K. Steel Ltd. v. Union of India (8) (supra) 27. 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 unjustified. 28. 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 construction 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 plaintiffs shall pull down or remove the temporary structure in question whenever called upon to do so and the same having been annexed to and made to go with the ownership of the structure in respect whereof, it was granted by virtue of Sect....
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....the local authority under this section may be recovered from the persons in default 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 to town-planning scheme...it shall be referred to the State Government or any officer authorized 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 persons. Rule 28 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 Sub-section (1) of Section 55, a local authority shall 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. 29. The conclusion is, therefore, ines....
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....man Krishnaji Limaya, Sub-Engineer, Bombay Municipal Corporation made nearly fourteen years ago to the effect that "the general policy of Corporation is not to expedite the demolition unless some alternative 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 opinion that there is no force in point No 5. 32. 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 at the request of the Corporation, the State Government has, by in notification No. TPB 1073/33184 published in the Government 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 al....