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SUPREME COURT OF INDIA
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH, RAGHUBAR DAYAL AND J.R. MUDHOLKAR, JJ.
The Municipal Corporation of Greater Bombay, Appellant
Versus
Lala Pancham and others, Respondents.
Civil Appeal No. 134 of 1964.
1st October, 1964.
Advocates appeared
Mr. M. C. Setalvad, Senior Advocate (Mr. J. B. Dadachanji, Advocate of M/s. J. B. Dadachanji and Co., with him), for Appellant; Mr. S. V. Gupta, Additional Solicitor General of India (M/s. G. A. Pandya and M. I. Khowaja, Advocates, with him), for Respondents Nos. 7, 8 and 9; Mr. I. N. Shroff, Advocate, for Respondent No. 4.
-where by the amendment the plaintiff intends to make out a case of fraud for which there is not the slightest basis in the plaint as it originally stood, the Court must reject the amendment
The suit by tenants challenging a clearance order issued by the Municipal Corporation was not maintainable, as alternative remedies under the Act were available. (!) [1000122740005][1000122740023]
Tenants instituted the suit in a representative capacity against the Corporation and landlords regarding dilapidated buildings intended for demolition under an agreement. (!) [1000122740001]
Buildings were in dilapidated condition, with multiple notices and prosecutions ignored by owners and landlords, allegedly to facilitate demolition. [1000122740002]
Clearance area declared and order made under S.354R, challenged as ultra vires Art.19(1)(f) and mala fide, without particulars of mala fides. [1000122740003]
Trial court dismissed suit as not tenable; High Court allowed amendment and remitted for additional evidence on mala fides and fraud. [1000122740005]
Amendment adding para 8A introducing fraud by landlords had no basis in original plaint, where "mala fide" referred to unconstitutionality and lack of hearing, not fraud. (!) (!) (!) (!) [1000122740006][1000122740007]
Court cannot permit amendment to introduce entirely new case of fraud without basis in original pleadings; mere use of "mala fide" insufficient. [1000122740007]
High Court erred in remitting case for fresh trial or additional evidence under O.41 R.27 CPC, as no lacuna in evidence; documents did not prima facie prove fraud. (!) (!) (!) (!) [1000122740008]
Appellate court power under O.41 R.27 CPC limited to filling lacuna for pronouncing judgment, not for new evidence to support specific contention or retrial. [1000122740008]
Court cannot compel a party to examine particular witnesses, even if motivated by justice; must act within legal limits. [1000122740014]
Documents like letters from City Engineer and Commissioner did not evidence fraud or mala fides; reaffirmed landlords' offers for alternative accommodation. [1000122740009][1000122740010][1000122740011][1000122740012]
Architect reports on repair costs and non-compliance with notices do not indicate collusion between landlords and Corporation. [1000122740013]
Ss.354R and 354RA valid under Art.19(5); impose reasonable restrictions on tenants' property rights in public interest for unfit buildings. [1000122740015][1000122740017][1000122740022]
Commissioner may declare clearance area if buildings unfit for habitation and remedied by demolition without improvement scheme. [1000122740018]
Corporation must minimize hardship to dishoused persons; clearance by demolition or acquisition. [1000122740018] (!) (!) (!)
Before confirmation, notice published and served on tax liable persons/mortgagees; objections considered; tenants entitled to object via publication. (!) (!) (!) [1000122740019][1000122740020]
"Any person aggrieved" by confirmed clearance order may appeal to City Civil Court Judge within 6 weeks; includes tenants/occupants affected. (!) [1000122740020][1000122740021]
Tenants' interest in premises is "property" under Art.19(1)(f), subject to reasonable public interest restrictions. [1000122740016][1000122740017]
Suit barred post-confirmation and appeal remedy exhaustion; no independent suit lies. [1000122740023]
Judgment
MUDHOLKAR, J. : The question which falls for decision in this appeal from the judgment of the High Court of Bombay is whether the suit instituted by the plaintiffs in the City Civil Court, Bombay, was maintainable. 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 plaintiifs 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 whi
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