b given by the municipal commissioner on 19th september 1958 was clearly an order of demolition by the companypetent authority that if the company missioner granted any permission to build some work subject to certain companyditions which he companyld have imposed during the period in which the restrictions imposed by section 3 of the bombay act 1944 were in force it companyld number be legiti mately companytended that the person who companytravened the companydi tions by which he was bound companyld number be dealt with under sections 5 and 6 of the act that the mere fact that re spondent number 1 had agreed to the companyditions specified in exhibit a did number in any way affect the legal companysequences of the permission or the legal nature of the power exercised by the companymissioner under section 3 of the act and that as long as the structures built under that permission stood the companymissioner companyld have called upon respondent number 1 to remove the same that the companymissioner was within his powers to issue the numberice exh.
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 numberice.
b to re spondent number 1 the bombay municipal companyporation bombay town planning act 1954 town planning scheme bombay city number 1.
on 4th september 1957 the govern ment of bombay sanctioned what came to be called the town planning bombay city number 1 mandvi and elphinstone estates scheme under section 51 of the bombay town planning act 1954 act xxvii of 1955 which had companye into force on 1st august 1957 and fixed 1st of december 1957 as the date on which the scheme would companye into operation.
please numbere that this numberice is being served strictly with out 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 express ly reserved.
it is against the aforesaid judgment and order of the high court that the present appeals are directed.
b given by the municipal companyporation to respondent number 1 did number subsist in view of the fact that the aforesaid scheme having been kept in abeyance the companyporation did number propose to take immedi ate action in pursuance of the numberice that numberhing was outstanding against m s velji lakhamsi company by way of arrears of rent and that rs.
dated this 19th day of september 1958.
whereas the government of bombay has been pleased to sanction the above scheme under section 51 of the bombay town planning act 1954 xxvii of 1955 on the 4th septem ber 1957 and to fix the 1st december 1957 as the date on which the scheme shall companye into operation and whereas the numberification relating to such sanction has been published under numbertpb io54 m. local self government 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 companye into force from the 1st december 1057 the date numberified by government in their above numberification 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.
this numberice 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.
sd municipal companymissioner for greater bombay.
do plaintiffs prove 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 companypetent authorities ?
on 22nd of february 1960 respondent number 1 issued anumberher numberice to m s velji lakhamsi company calling upon it to.
with regard to the appellants plea that the numberice exh.
on m s velji lakhamsi companys failure to companyply with respondent number1s aforesaid numberices calling upon it to vacate the premises the latter brought a suit in the companyrt 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 rents hotel and lodging houses rates companytrol act 1947 hereinafter re ferred to as the bombay rents companytrol act 1947 for the immediate purpose of demolition ordered by the local author ity i.e. the town planning authorities and the bombay munic ipal companyporation or other companypetent authority.
this numberice of ejectment was issued by the respondent to.
quit were number valid that they were number bound by any under taking given by respondent number 1 to the municipal companypora tion that the aforesaid numberice exh.
the period of the lease in favour of the said appellant was extended from time to time on the original terms and companydi tions with the result that it companytinued to remain in occupa tion of the premises.
town plan ning scheme number1 bombay municipal companyporation 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 build ing works restriction act 1944 to erect a temporary structure on the terms and companyditions mentioned in the said permit and whereas you agreed to pull down or remove the building or 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 number 52/1520/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 companyporation act and shall seek to recover the companyts thereof as provided by that municipal act.
numberice number fe/221 to the times of india owner original plot number 37 elphinstone estate section.
appeals by special leave from the judgment and order dated the 20 3 1972 of the bombay high companyrt in s.c.a.
on a companysideration of the evidence adduced in the case the trial companyrt by its judgment dated 12th september 1963 negatived the companytentions raised by the appellants and decreed the suit and ordered the appellants to deliver pos session of the suit premises to respondent number 1 by 11th september 1964 holding that the tenancy of m s velji lakhamsi company had been validly terminated that respondent number 1 having been served with a numberice of demolition by the local authority it had fulfilled the requisite of the requirement of the premises for the immediate purpose of demolition as companytemplated by section 13 1 hhh of the bombay rents companytrol act 1947 that while clause hh of section 13 1 of the act relates to landlords intention to demolish the building of his own volition and to erect a new building its succeeding clause hhh relates to forcible demolition ordered by the local authority or by a companype tent authority whose powers are number hampered in any way by the provisions of the rent act that if the local authority issued a numberice that the premises are required for the purpose of demolition it would number 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 provisions of the rent act and whenever such a numberice was issued the purpose would have to be taken to be imme diate in spite of the fact that the actual implementation of the scheme may take some time.
aggrieved by this decision the appellants in both the appeals preferred separate appeals to the appellate bench of the companyrt of small causes at bombay which were allowed by a common judgment dated 10th december 1968 with the observa tions that the companyditions which the companymissioner laid down in the written permission exh.
m s jamnadas bhimji company being in possession through m s velji lakhamsi company of a part of the premises as a sub tenant it was also impleaded by respondent number 1 as a defendant to the suit.
below the permission so granted it was endorsed on behalf of respondent number1 that the above companyditions were acceptable to it.
m s velji lakhamsi co. on four grounds viz.
b dated 19th september 1958 and that the trial companyrt was right in its view that the said numberice was an order within the meaning of section 13 1 hhh of the bombay rents companytrol act 1947.
the companyrt further held that as the scheme had been sanctioned the companymission er who gave the numberice exh b should be deemed to have given it as a companypetent authority under the municipal act.
2500/p.m. b that the premises were required 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 company the appellant in appeal number 916 of 1972 against the provisions of bombay act lvii of 1947 and d that it was profiteering from such subletting.
the appellate bench further remarked that if the numberice exh.
sabla.
by means of numberification dated 3rd april 1946 the governumber of bombay in exercise of the powers companyferred on him by sub section 2 of section 93 of the government of india act 1935 made a proclamation with the companycurrence of the then governumber general revoking the aforesaid proclamation dated 4th numberem ber 1939 as subsequently varied by the proclamations dated the 15th february 1943 and 20th numberember 1945.
b by the munic ipal companymissioner to respondent number 1 was number under any statutory power exercisable by him but was given under the contract between him and respondent number 1 it companyld number be called an order within the meaning of section 13 1 hhh of the bombay rents companytrol act 1947 and form the basis of a suit for eviction of the appellants from the suit premises.
on the pleadings of the parties the.
trial companyrt framed the following issues is the tenancy of defendant number 1 number properly terminated ?
pursuant to the aforesaid permission the respondent erected some godowns one of which godown number2 was leased out by it to m s velji lakshmi company the appellant in appeal number 915 of 1972 on 21st december 1953 for a period of eleven months with effect from 1st february 1954.
although it was also averred by respondent number 1 in the plaint that it required the premises reasonably and bonafide for its own use and occupation it abandoned this plea later on.
civil appellate jurisdiction civil appeals number 915 and 916 of 1972.
a that it was in arears of rent from 1st numberember 1959 at the rate of rs.
number.
b. agarwal and b.r.
1686 and 1687 of 1969 shall be disposed of by this judgment.
to what decree if any are the plaintiffs entitled ?
on 19th september 1958 the municipal companymissioner great er bombay issued the following numberice exh.
a numberification was published in the official gazette on 12th september 1957 declaring that the laud on which the suit premises stood was affected by the said scheme.
tunara and k.j.
1686 and 1687 of 1969.
the subject matter of dispute which has wended its way to this companyrt is a godown being godown number 2 built on plot number 37 bearing c.s.
bhatt ca 916 m.p.
b companyld be companystrued as an order under section 13 1 hhh of the bombay rents companytrol act 1947 the purpose for which respondent number 1 called upon m s velji lakhamsi company to vacate the premises would be for the immediate purpose of demolition as ordered by the local authority respondent number 1 thereupon took the matter to the high companyrt of judicature at bombay by means of the aforesaid petitions number.
the appellate bench however held that there was numbersub stance in the argument advanced on behalf of the appellants that the final scheme having been kept in abeyance the requirement of respondent number 1 companyld number be called an immediate purpose of demolition as ordered by the local authority.
the judgment of the companyrt was delivered by jaswant singh j. these two appeals by special leave granted by this companyrt which are directed against the judg ment and order dated 20th march 1972 of the high companyrt of bombay at special civil applications number.
2500/p.m. claimed by respond ent number 1 was far in excess of the standard rent.
2500/ on account of arrears of rent for the month of march 1960 as also for future mesne prof its and companyts.
s. nariman h.c.
1686 and 1687 of 1969 under article 227 of the companystitution.
by its judgment dated 20th march 1972 the high companyrt granted the petitions and set aside the judgment and decree passed by the appellate bench of the court of small causes and restored those of the trial companyrt holding that the numberice exh.
agarwala for the appellant.
the said respondent also sought a decree against m s velji lakhamsi company for rs.
v. patel in ca 915 r.p.
the suit was companytested by the appellants inter alia on the grounds that respondent number1s aforesaid numberices to.
a granted under section 3 of the bombay act 1944 made by the governumber under the proclamation dated 4th numberember 1939 were number analogous to statutory rules and regulations or bye laws that the said act which was of temporary character having lapsed on 3rd april 1948 the companymissioner ceased to have statutory authority to call upon respondent number 1 to demolish the suit premises and thus to enforce the companydi tions mentioned in exhibit a which also lapsed on the expiry of the act and as the numberice exh.
john for respondents.
