LexMUNICIPAL CORPORATION FOR GREATER BOMBAY versus LALA PANCHAM OF BOMBAY & OTHERS
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142
MUNICIPAL CORPORATION FOR GREATER BOMBAY
A
v.
LALA PANCHAM OF BOMBAY & O'lllERS
October 1, 1964
(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, RAGHUBAR DAYAL
AND J. R. MUDHOI.KAR JJ.)
Bombay Municipal Corporalion (Act 3 of 1888), ». 354R ana
3S4RA-Cons1i1u1iona/ validity--Schtdu/t GG, cl. (2) of th• Ac1-Per.wn
aggrieved-If includes tenants of prtmisu-Sult by ttnanu qutJtlonina cltor-
ance order-Malnta/nabl/lry,
Practice-A /lowing amendment of plaint and admitting additional evi-
dence In Letter.< Patent Appeal-High Court giving directions 10 examine
c1rti:Mn witnesses--Proprkty.
Code of Civil Procedure (Act I' of 1908), 0. XX!, r. 21-Scopt of.
The Municipal Corporation of Greater Bombay published a resolution
under s. 354R of the Bombay Municipal Corporation Act, 1888, declaring
a c.ertain area to be a clearance area.
After the expiry of the period
within which persons affected by it had to lodge objections thereto, the
Corporation submitted a clearance order to the State Government, under
a. 354RA for confirmation. After confirmation an agreement was entered
into between the (Arporation and the landlords of certain buildinp in
the clearance area for the demolition of those building:1. The tenani. therein,
ftled a suit in the City Civil Court against the Corporation and landlords
contending that : (i) ss. 354R and 354RA were ultra vires as they did not
provide for the giving of an opportunity to the tcnani. to show that lh.c
premises did not require to be demolished, and (ii) the action of defendanlll
was ma/a fidt because it was taken under unconstitutional provisions and
also because no opportunity was given to them to object to the proposed
ac:tioo. The suit was dismissed on the ground that the only remedy of the
plaintiffs was to file an appeal against the clearance order to the Judgi:.
City Civil Court, under Schedule GO, cl. (2) of the Act. An appeal to
the High Court was also dismiMed but in Letters Patent Appeal, the High
Court remitted the matter to the trial Court, after allowing the plaintilfa
to amend the plaint.
By the amendment the plaintiJfs sbifled their ground
by saying that the landlords wrongfully and fraudulently induced the Cor-
poration to make the order. The Court also gave directions for taking
additional evidence and for examining certain specified persons as witnesaes.
The Corporation appealed to the Supreme Court.
HELD : (i) The interest of the tenanu in the demised l'rcm.ises is
property within the meaning of Art. 19(1)({) of the Constitution.
Since
however, s. 354RA and Schedule GG afford opportunities to them to
object to a clearance order, it follows that the restriction• on the tenani.'
right to bold property, enacted by ss. 3S4R and 3S4RA, arc not unreason-
able and that the provisions are valid. [554 C; SSS D-E].
(ii) Upon ·the view that the sections are valid, it must further follow
that it was open to the plaintiffs to prefer an appeal under Schedule 00
cl. (2) to the Judge, City Civil Court as the tenants were "persons aggriev-
ed" within the meaning of the clause.
Finality is given to a clearance
order after ii. confirmation by the Government and ii! public •• ion, subj.._'t
only to the result of an appeal ao preferred.
If no such appeal wu
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D
F
G
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COllPORATION OF BOMBAY v. LALA PANCHAM (Mudho/kar J.) 5.(J
A
preferred or if such appeal was filed and dismissed no remedy by suit was
available to a person like a tenant whose . contention was that he was
~grieved by a clearance order. [558 E-G].
(iii) The High Court was in error in allowing the amendment to the
plaint and in remitting the suit for a virtual retrial. (552 F].
By the •!llendment, the plaintiffs were mal<ing out a new case of fraud
ffll' wllicb there was not the slightest ·basis in the plaint. Also, the power
B
under o.· XLI, r. 27 of the Code, was orily for ·remC>Ving· a lacuna in th"
evidence and did not entitle the High Court to let in fresh evidence at the
appellate stage, where even without such evidence it could pronounce judg-
ment in the case. Further, the High Court should not have given direc-
tions for examining specified persons as it was beyond its competence to
virtually oblige a pnrty to examine any particular witness.
[547 F; 54&
G-H; 552 G-HJ.
c
CIVIL APPELLATE JURISDICTION: Civil Appeal Ne:>. 134 of
1964.
Appeal by special leave from the judgment and order dated
September 28, 1962, of the Bombay High CoExcerpt shown. Read the full judgment & AI analysis in Lexace.