01 October 1964
Supreme Court


Case number: Appeal (civil) 134 of 1964






DATE OF JUDGMENT: 01/10/1964


CITATION:  1965 AIR 1008            1965 SCR  (1) 542  CITATOR INFO :  R          1974 SC2069  (5)

ACT: Bombay  Municipal Corporation (Act 3 of 1888), ss. 354R  and 354RA-Constitutional  validity-Schedule GG, cl. (2)  of  the Act-Person aggrieved-If includes tenants of premises-Suit by tenants questioning clearance order-Maintainability. Practice-Allowing   amendment   of  plaint   and   admitting additional  evidence  in Letters  Patent  Appeal-High  Court giving directions to examine certain witnesses-Propriety. Code of Civil Procedure (Act V of 1908), O. XXI, r. 27-Scope of.

HEADNOTE: The  Municipal  Corporation of Greater  Bombay  published  a resolution under s. 354R of the Bombay Municipal Corporation Act, 1888, declaring a certain 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 s. 354RA for confirmation.  After confirmation an  agreement was  entered into between the Corporation and the  landlords of   certain  buildings  in  the  clearance  area  for   the demolition of those buildings.  The tenants therein, filed 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 tenants to show that the premises did not require to be demolished, and (ii) the action of  defendants was  mala fide because it was taken  under  unconstitutional provisions  and  also because no opportunity was  -given  to them  to  object  to  the proposed  action.   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 Judge, City Civil Court, under Schedule GG, cl.  (2) of the Act.  An appeal to the High Court was also  dismissed but  in Letters Patent Appeal, the High Court  remitted  the matter to the trial Court, after allowing the plaintiffs  to amend  the plaint.  By the amendment the plaintiffs  shifted



their  ground  by saying that the landlords  wrongfully  and fraudulently induced the Corporation to make the order.  The Court  also gave directions for taking  additional  evidence and  for examining certain specified persons  as  witnesses. The Corporation appealed to the Supreme Court. HELD  :  (i)  The interest of the  tenants  in  the  demised premises  is property within the meaning of Art. 19 (1)  (f) of  the Constitution.  Since however, s. 354RA and  Schedule GG  afford  opportunities to them to object to  a  clearance order,  it  follows that the restrictions  on  the  tenants’ right  to hold property, enacted by ss. 354R and 354RA,  are not unreasonable and that the provisions are valid. [554  C; 558 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 GG cl. (2) to the Judge, City Civil Court  as  the tenants were "persons aggrieved"  within  the meaning  of  the clause.  Finality is given to  a  clearance order  after  its  confirmation by the  Government  and  its publication,  subject  only to the result of  an  appeal  so preferred.  If no such appeal was  543 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 aggrieved    by    a    clearance order.  L558 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 amendment, the -plaintiffs were making out a new case of fraud for which there was not the slightest basis in  the plaint.   Also  the power  under 0. XLI,  r.27       of  the code, was only for removing a lacuna in the 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  judgment  in the case.  Further, the  High  Court should  not  have given directions for  examining  specified persons  as it was beyond its competence to virtually oblige a party to examine any particular witness. [547 F; 548  G-H; 552 G-H].

JUDGMENT: CIVIL  APPELLATE        JURISDICTION : Civil Appeal No.  134 of 1964 Appeal by special leave from the judgement and order dated September 28, 1962, of the Bombay High Court in L. P. Appeal No. 85 of 1961. M.   C. Setalvad and J.B. Dadachanji, for the appellant. s.   V.  Gupte, Additional Solicitor-General, G. A.  Pandaya and M.   1. Khowaja, for respondents Nos. 7, 8 and 9. l. N. Shroff for respondent No. 4. The Judgment of the Court was delivered by Mudholkar J. The question which falls for decision in 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 known  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  remainmg defendants 2 to 4 are landlords of the plaintiffs. 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 544 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  buildings 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. 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 plaintiffs  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. 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 Arts. 19 ( 1 ) (f)  and  (g)  ,of  the Constitution.   Further, according to them the first  defen- dant  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. 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.  545 The  trial court dismissed the suit mainly upon  the  ground that  it  war,  not tenable.  An appeal  was  taken  by  the plaintiffs  to the High Court which was dismissed  summarily



by  Datar  J.,  on August 25, 1961.  On  the  same  day  the plaintiffs  preferred  an appeal under  the  letters  patent which  went up before a Division Bench consisting  of  Patel and Palekar JJ.  The learned Judges permitted the plaintiffs to  amend  the  plaint  overruling  the  objections  of  the defendants.  In their judgment the learned Judges held  that the  suit was not barred.  Then they proceeded  to  consider the   question  of  mala  fides.   According  to  them   the plaintiffs had pleaded mala fides but that they had  omitted to  give particulars.  They also observed that it  was  true that no evidence was led by the plaintiffs before the  trial court  and ordinarily they would not have been  entitled  to lead fresh evidence at that stage, much less so at the stage of  the  appeal under letters patent.   According  to  them, however,  it is not possible to dispose of the case  on  the material  on  record, that there are  certain  documents  on record  which, if unexplained, "support in a  large  measure the contention of the plaintiffs that defendants 2, 3 and  4 obtained an order by fraud and also that the order was  mala fide."  After  referring  to some of  these  documents  they observed:  "Though  therefore  no evidence  is  led  on  the question  of  mala fides or fraud committed  upon  them,  it prima facie leads to such an inference, and it would not  be proper  to  decide the question  without  requiring  further evidence."  This observation was followed by another  which, we  think,  is  a  very  unusual one.   It  is  this  :  "We particularly want the Commissioner and the City Engineer and the defendants to be examined on this question." Eventually, the  learned  Judges remitted the case to  the,  City  Civil Court  for recording additional evidence and  directed  that Court to certify the evidence and its findings by the end of November,  1962.   After the grant of special leave  to  the appellants the proceedings before the City Civil Court  have been stayed. We  must  first  address ourselves to  the  question  as  to whether  the  High  Court was justified  in  permitting  the amendment  to the plaint.  By that amendment the  plaintiffs have  added  paragraph 8A to the plaint.   There  they  have purported  to summarise the correspondence which took  place between  the plaintiffs and the officers of the  Corporation and  between the landlords and the Corporation.   Then  they have stated as follows               "In  the premises the plaintiffs say that  the               defendants  2, 3 and 4 have  fraudulently  and               wrongfully  induced the 1st defendant to  make               the said order.  In the alternative               546               and  in any event the plaintiffs say  that  as               defendants 2, 3 and 4 have derised (sic) their               responsibility to provide accommodation to all               the  tenants in the new buildings intended  to               be  constructed  on the site,  the  plaintiffs               will submit that the approval of the  Improve-               ment  Committee  to  the said  order  and  the               subsequent   confirmation   thereof   by   the               Municipal Corporation and Government was given               under   a   mistake   of   fact   and    under               circumstances not warranted by the  provisions               of  section  354R  and of  the  law.   In  the               circumstances  the plaintiffs submit that  the               said orders passed by the 1st defendant  under               section   354R  have  been  passed  in   utter               disregard  and  in  violation  of  the  strict               provisions   of   the   said   section.    The               plaintiffs  submit  that  the  1st   defendant



             failed  and neglected before making  the  said               order   to  take  any  measures   whether   by               arrangement  of the programme of otherwise  to               ensure that as little hardship as possible was               inflicted  on  the  tenants.   The  plaintiffs               accordingly  submit that the said  orders  are               illegal, invalid and void."               In   the  plaint  as  originally   filed,   in               paragraph  9 they have said the  following  on               the question of mala fides :               "The plaintiffs submit that the action  sought               to be taken is a clear abuse of the provisions               of the Bombay Municipal Corporation Act and as               such ultra vires the powers conferred upon the               defendant   No.  1  by  the  said  Act.    The               plaintiffs, therefore, submit that the  action               of the defendant No. 1 is mala fide." In the earlier paragraphs the plaintiffs have challenged the validity  of  ss. 354R and 354RA on the  grounds  that  they confer  untrammelled and uncontrolled  executive  discretion upon  the  Corporation and its officers and  also  upon  the ground  that  they are violative of the  plaintiffs’  rights under  Art. 1 9 (1) (f) and (g) of the  Constitution.   They have not indicated why the making of the clearance order  by the  Corporation was an abuse of the provisions of the  Act. No doubt, later in paragraph 9 they say that the Corporation failed to give a hearing to the plaintiffs and that had they been  given  an opportunity they would  have  satisfied  the Corporation that the premises in question did not require to be  pulled  down.   While therefore, it  is  true  that  the plaintiffs have characterised the action of the  Corporation as   mala  fide  the  grounds  upon  which  the  action   is characterised   as   mala  fide  appear,  to  be   (a)   the unconstitutionality of the provisions of S. 354R and 547 354RA  and  (b)  failure  of  the  Corporation  to  give  an opportunity  to the plaintiffs to satisfy its officers  that the  premises  did  not require to be  demolished.   By  the amendment made by them in pursuance of the order of the High Court  they  have shifted their ground by  saying  that  the landlords  have  fraudulently  and  wrongfully  induced  the Corporation  to make the order and plead alternatively  that as the landlords have denied their responsibility to provide accommodation  to  all  the  tenants  in  the  new  building intended  to be constructed on the site, a  clearance  order could not properly be made by the Corporation. It was urged before us by Mr. Setalvad that an entirely  new case  has  been  made  out in the  amendment  and  that  the plaintiffs  did  so  at the suggestion  of  the  Court.   In support of his contention he also referred to the  objection of Mr. S. V. Gupte before the High Court to the effect  that the plaintiffs had not made an application for the amendment of the plaint.  He further, relying upon a reference in  the judgment, said that the amendment proposed by the plaintiffs was not found by the Court to be adequate and that it was at the  instance of the Court that the plaintiffs proposed  the amendment  which now actually finds place as para 8A of  the plaint.   There appears to be good foundation for  what  Mr. Setalvad says but merely because an amendment was sought  by the  plaintiffs at the suggestion of the court it would  not be proper for us to disallow it unless there are grounds for holding  that it was forced upon an unwilling  party.   That is, however, not the suggestion.  For, the court wanting  to do  justice  may  invite the attention  of  the  parties  to defects in pleadings so that they could be remedied and  the



real  issue between the parties tried.  There  is,  however, another  ground and a stronger one which impels us  to  hold that  the  amendment should never have been  allowed.   That ground  is that the plaintiffs are now making out a case  of fraud  for  which there is not the slightest  basis  in  the plaint  as  it originally stood.  The mere use of  the  word mala  fide  in  the  plaint  cannot  afford  any  basis  for permitting an amendment.  The context in which the word mala fide  is  used  in the plaint clearly shows  that  what  the plaintiffs  meant  was  that the order  of  the  Corporation having been made in exercise of arbitrary powers and ’having the  result  of adversely affecting the  plaintiffs’  rights under Art. 19 (1 ) (f) and (g)     of    the    Constitution amounted to an abuse of the provisions of the     Act    and was thus made mala fide. The  High  Court was quite alive to the requirement  of  law that      party should not be allowed to make out a new case by way of 548 an amendment to the pleading.  Dealing with this matter  the High Court has observed :               "This  brings us to the course which  we  must               adopt  in the present case and  the  amendment               application.   In  the plaint,  the  plaintiff               alleged that the order was mala fide and  that               it was obtained for collateral purposes." The learned Judges were not correct in observing that it was the  plaintiffs’ case in the plaint that the  landlords  had obtained  the  clearance order or that the  Corporation  had made  that order for a collateral purpose.  This  impression of  the  High  Court seems to be the  basis  of  the  rather curious  procedure  which it chose to follow in  this  case. Then  the High Court referred to the fact that  no  evidence whatsoever  had been led by the plaintiffs before  the  City Civil  Court  to  the  effect  that  the  order  was  passed fraudulently  or for a collateral purpose.  It was alive  to the  fact that in such a case a party should not be  allowed to  adduce  fresh evidence at the appellate stage  and  much less  so  at the stage of letters patent  appeal.   Then  it observed :               "If the case had rested thus the matter  would               have been very simple apart from the amendment               application.   It seems to us however that  it               is  not  possible  to  dispose  of  this  case               satisfactorily  on  the  material  on  record.               There  are some documents on record  which  if               unexplained  support  in a large  measure  the               contention  of the plaintiffs that  defendants               2,  3  and 4 obtained the order by  fraud  and               also that the order was mala fide." If  the  High  Court,  in  making  these  observations,  was referring to the provisions of 0. XLI, r. 27, Code of  Civil Procedure  it  ought not to have  overlooked  the  mandatory provisions  of  cl. (b) of sub-r. (1) of r. 27.   No  doubt, under r. 27 the High Court has the power to allow a document to  be  produced  and a witness to  be  examined.   But  the requirement of the High Court must be limited to those cases where  it  found it necessary to obtain  such  evidence  for enabling it to pronounce judgment.  This provision does  not entitle  the  High  Court to let in fresh  evidence  at  the appellate  stage  where even without such  evidence  it  can pronounce  judgment  in  a case.  It does  not  entitle  the appellate  court  to  let in fresh  evidence  only  for  the purpose  of  pronouncing judgment in a particular  way.   In other  words,  it  is  only for removing  a  lacuna  in  the



evidence  that  the appellate court is  empowered  to  admit additional evidence.  The High Court does not say that there is any such lacuna in this case.  On the other hand what it  549 says is that certain documentary evidence on record supports "in a large measure" the plaintiffs’ contention about  fraud and  mala  fides.   We  shall  deal  with  these   documents presently  but before that we must point out that the  power under cl. (b) of sub-r. (1) of r. 27 cannot be exercised for adding to the evidence already on record except upon one  of the grounds specified in the provision.  If the documents on record  are relevant on the issue of fraud the  court  could well  proceed  to consider them and decide the  issue.   The observations of the High Court that certain documents  would support  the  plaintiffs’ contention of fraud only  if  they were  not  explained would show that according  to  it  they furnish  a prima facie evidence of fraud.  There is  nothing to  show  that the defendants or any of them  wanted  to  be afforded  an opportunity for explaining the  documents.   It would further appear that it was not merely for the  limited purpose  of  affording  the  defendants  an  opportunity  to explain the documents that the High Court remitted the  case to the City Civil Court.  For, in the concluding portion  of its judgment the High Court has directed as follows :               "in the result, we remit the case to the  City               Civil Court for receiving additional  evidence               as directed by us in the judgment and also  to               allow  evidence on the amendment.   We  direct               that  the  defendants do  file  their  written               statement within three weeks from today, or at               such earlier time as they can in answer to the               amendment permitted to be made.  Discovery and               inspection forthwith within a week thereafter.               And after this formality is over, the case  to               be  on the board for final hearing for  taking               evidence  on  the issue of mala fide  and  the               issues  that  arise on the  amended  pleadings               between the parties........" This clearly shows that what the High Court has in substance done  is  to  order a fresh trial.  Such  a  course  is  not permissible  under 0. XLI, r. 27, Code of  Civil  Procedure. The High Court has quite clearly not proceeded under 0. XLI, r.  25  because it has not come to the conclusion  that  the City Civil Court had omitted to frame or try an issue or  to determine  the question of fact which was essential  to  the right  decision  of  a suit.  For, the High  Court  has  not indicated which issue was not tried by the trial court.   If the  High Court meant that the necessary issue had not  been raised  by the trial court though such issue was called  for in  the light of the pleadings, the High Court  is  required under this rule to frame the additional issue and then remit it for trial to the City Civil 550 Court.  Finally, this is not a case which was decided by the trial  court  on  any preliminary point  and,  therefore,  a general remand such as is permissible under r. 23 could  not be ordered. The  only documents to which the High Court has referred  in its  judgment as supporting the plaintiffs’  allegations  of fraud and mala fides are the letter, dated September 3, 1959 which  the City Engineer wrote to the  Tenants’  Association and   the  letter,  dated  September  11,  1959  which   the Commissioner  wrote to the Improvements Committee.   In  the first of these letters the City Engineer had stated that the landlords  had agreed to construct a building consisting  of



single  room  tenements for the purpose of  letting  out  at standard  rents  and  that the  landlords  were  taking  the responsibility    for    providing    either     alternative accommodation  to  bona  fide  residents  by  shifting  them temporarily  to  other  premises or by  arranging  a  phased programme  of  demolition and construction as may  be  found convenient.   How  this letter can afford  any  evidence  of fraud  or mala fides it is difficult to appreciate.   It  is not  disputed before us that the landlords  had  constructed some chawls at Kurla and that they had offered to house  the tenants of the Dhobi Chawls in the Kurla Chawls temporarily. It  was also not disputed that the landlords had  agreed  to construct, after the demolition work was over, new buildings in which the present tenants would be afforded accommodation at  standard rents.  Paragraph 3 of the letter of  September 11,  1959 quoted by the High Court in its judgment  mentions that  a representation was received from the tenants to  the effect  that the landlord should construct a  new  structure near about the clearance area instead of asking the  tenants to  go  to  the Kurla Chawls.  But their  demand  cannot  be regarded as reasonable.  The landlords are not shown to  own any  land in the neighbourhood.  The correspondence  through which  we were taken by Mr. Setalvad abundantly  shows  that land  values are very high in Colaba and range  between  Rs. 250 and Rs. 275 per sq. ft., and the landlords could not  be reasonably expected to buy land for the purpose.   Moreover, there  is nothing to show that any vacant building site  was available  in  the  neighbourhood of  Dhobi  Chawls  at  the relevant time. The  High  Court observed in its judgment that it  was  only after  the scheme was finally approved by  the  Corporation, confirmed by the State Government and the final orders  made by  the  City  Civil Court became operative  that  the  City Engineer  wrote to the Tenants’ Association stating that  no undertaking  was given by the landlord.  The High Court  had apparently  in mind the letter, dated April 1, 1960 sent  by the City Engineer to the  551 Tenants Association which is described in the paper book  as item No. 38.  That letter reads thus "Gentlemen,               Reference  : your letter No. Nil,  dated  19th               February,  1960.   The landlord of  the  above               mentioned   property   has   undertaken    the               responsibility   of   providing    alternative               accommodation to bona fide residential tenants               at standard rent by constructing a building on               one of the plots viz., plot No. 7 at the  same               site.    The  question  of  making  the   site               available  for  the construction of  the  said               building,  either  by  the  tenants   shifting               temporarily to other place or by the  landlord               arranging a phased programme of demolition and               construction,  it is a matter which should  be               mutually  arranged  by the  landlord  and  the               tenants.   The Municipality  would  facilitate               towards  arriving  at  any  such   arrangement               between  the two parties as indicated by  you,               no  undertaking  has  been  obtained  by  -the               Municipality from the landlord for any  phased               programme  of demolition of the  chawls.   The               landlord  will  be required  to  demolish  the               chawls in compliance with the Clearance  Order               after the same becomes operative.               As there is no sufficient open space available



             at  the  above  property,  it  does  not  seem               feasible  to provide  temporary  accommodation               for  the  tenants at the same  site.   If  the               tenants  are not in a position to  make  their               own arrangement to shift from the place,  they               should  temporarily shift to tenants (sic)  at               Kurla  offered to them by the landlord with  a               view to facilitate speedy construction of  the               proposed building.                     Yours faithfully,                          Sd/- This letter, far from showing that either the Corporation or the  landlords had gone back on the assurance  of  providing the  tenants  alternative accommodation, reaffirms  it.   No doubt  it  says  that no undertaking  was  obtained  by  the municipality from the landlords to the effect that a  phased programme  of  demolition of the chawls would  be  followed. This,  the  City  Engineer  pointed out,  was  a  matter  of negotiation  between the landlords on the one hand  and  the tenants on the other.  Having made alternative Sup.C.I./65-10 552 arrangements  for housing the tenants temporarily there  was no  further responsibility either on the Corporation  or  on the landlords to do anything more.  The High Court, however, thought  otherwise  and  observed  :  "Though  therefore  no evidence  is led on the question of mala fides or  fraud  it prima facie leads to such an inference and it is not  proper to decide the question without further evidence." It will be repeating  ourselves to say that in these circumstances  the High Court had no powers to admit additional evidence or  to direct additional evidence being taken. Mr. Shroff who appears for the plaintiffs has referred us to two  reports  of  architects in which  the  architects  have stated  that repairs to the buildings would cost Rs. 2  lacs whereas  new  buildings  would cost Rs.  3  lacs  and  that, therefore,  the  best thing for the landlords to do  was  to approach  the  Corporation for making a clearance  order  so that  they could eventually construct new buildings  on  the site.  According to learned counsel this circumstance, taken with  .the fact that there was deliberate avoidance  by  the landlords and the owners of the Colaba Land Mill Co.,  Ltd., to  comply with the notice of the Corporation  to  undertake repairs,  goes to show collusion between the  landlords  and the Corporation and that, therefore, it cannot be said  that there  was no material on record in support of the  plea  of fraud set out in paragraph 8A.  Apart from the fact that the High  Court  has  not  referred  to  this  material  it   is sufficient  to observe that though the landlords,  may  have deliberately  allowed  the buildings to  become  unfit  ’for human  occupation or a danger to the safety of  the  tenants occupying them, these matters do not indicate any  collusion between the landlords and the Corporation. We  are, therefore, of the view that the High Court  was  in error  in  allowing  the  amendment to  the  plaint  and  in remitting the suit to the trial court for a virtual retrial. The  High  Court, however, did not rest  content  with  this order  but  further  directed  "we  particularly  want   the Commissioner and the City Engineer and the defendants to  be examined on this question"-the question being the breach  of an assurance given to the tenants.  In making this direction the  High Court may have been actuated by a laudable  motive but we think it ought to have borne in mind the limits which the law places upon the powers of the Court in dealing  with a  case  before it.  Just as it is not open to  a  court  to



compel  a party to make a particular kind of pleading or  to amend  his pleading so also it is beyond its  competence  to virtually oblige a party to ,examine any particular witness. No  doubt, what the High Court ,has said is not in  terms  a peremptory order but the parties could  553 possibly not take the risk of treating it otherwise.  While, therefore,  it is the duty of a court of law not only to  do justice but to ensure that justice is done it should bear in mind that it must act only according to law, not otherwise. The question then is whether we should send back the  matter to the High Court for deciding the question of the vires  of ss.  354R  and 354RA.  It will be remembered that  the  High Court  has  not  given a finding on this  point.   We  would ordinarily  have  sent back the case to the High  Court  for deciding  the point.  But bearing in mind the fact that  the clearance  order was made by the Corporation as long ago  as May 7, 1959 and confirmed by the State Government on January 23,  1960 and also the possibility of the appeal  not  being dealt  with within a reasonable time by the High: .Court  on account  of  the  congestion of work there,  we  thought  it appropriate to hear the parties on this point as well and to decide. it ourselves. The   contention  of  Mr.  Shroff  is  briefly  this.    The plaintiffs an& those who are occupying the buildings have an interest  in  them,,  by reason of the fact  that  they  are tenants.  As a result of the clearance order they are liable to  be evicted from their respective tenements.   Therefore, he  contends, the Corporation could not make such  an  order without giving them an opportunity of showing cause  against it.  According to him, the provisions of ss. 354R and  354RA do not contemplate an opportunity to be given to the tenants before  a  clearance  order is passed  and,  therefore,  the provisions  are  ultra vires.  Further,  according  to  him, their suit is -not barred by virtue of the provisions of cl. (2)  of  Schedule  GG, because they cannot  be  said  to  be "persons   aggrieved"   by  the  clearance   order.    They, therefore, did not have a right to prefer an appeal before a Judge  of the City Civil Court, Bombay from that order.   He also  points  out that the Bombay Rents Hotel  and  .Lodging House Rates Control Act, 1947 has placed restrictions on the right of a landlord of a house situated in an area like  the City  of Bombay to which the Act extends, to evict a  tenant therefrom  by  enacting  in s. 12 that a  tenant  shall  not ordinarily  be evicted as long as he pays the standard  rent and permitted increases’ whatever may have been the duration of  his  tenancy,  under the original  agreement.   A  right conferred   by   this  provision  on   the   tenant   exists independently  of  the landlord’s right to own  and  possess property  and  this right could not be  interfered  with  or derogated  from  by the Corporation by  making  a  clearance order  behind the back of the tenant.  He admits that  under cl. (hh) of’ sub-s. (1) of s. 13 a landlord will be entitled to recover possession 554 of the premises from the tenant on the ground that they  are required by a local authority or other competent  authority. But, he argues, this provision furnishes another reason  for the tenant being afforded an opportunity by the Act to  show cause  against a proposed clearance scheme which affects  or is likely to affect him inasmuch as he will be bound by  the clearance  order in a proceeding undertaken by the  landlord under S. 13(1) of the Act for recovery of possession of  the demised premises on the strength of that order. We  have no doubt that a tenant has both under the  Transfer



of  Property Act and under S. 12 of the Bombay Rents,  Hotel and Lodging House Rates Control Act, 1947 an interest in the demised premises which squarely falls within the expressions property  occurring in sub-cl. (f) of cl. (1) of Art. 19  of the  Constitution.   The right which a tenant  enjoys  under this  sub-clause is, however, subject to the  provisions  of cl. (5) of Art. 19 which, among other things, provides  that the  right recognised by the sub-clause does not affect  the operation  of any existing law in so far as it imposes,  ,or prevent  the State from making any law imposing,  reasonable restrictions on the exercise of any of the rights  conferred by  the  said sub-clauses in the interests  of  the  general public.  The Bombay Municipal Corporation Act was admittedly an  existing  law at the ,date of the  commencement  of  the Constitution but ss. 354R to 354RA were substituted for  the earlier provisos by S. 18 of Bombay Act 34 of 1954.  So what we  have  to  ascertain is whether the  law  -as  it  stands imposes  a reasonable restriction on the tenant’s  right  to hold the demised premises.  For this purpose we win have  to ,examine  the  provisions  of  the  Act  which  empower  the Corporation to make a clearance order. Sub-section (1) of S. 354R provides that if it shall  appear to   the   Commissioner,  among  other  things,   (a)   that residential buildings in any area are by reason of disrepair unfit  for human habitation or for like reason dangerous  or injurious  to the health of the inhabitants of the area  and (b)  that  the  conditions in the area  can  be  effectually remedied by the demolition of all the buildings in the  area without  making an improvement scheme, the Commissioner  can define the area and submit a draft clearance scheme for  the approval of the Corporation.  The Corporation can then  pass a resolution declaring that the area as defined and approved by it to be clearance area.  Sub-section (2) provides, among other  things,  that the Corporation  should  ascertain  the number  of  persons who are likely to be dishoused  in  such area and thereafter take such measures as are practicable to ensure that as little hard-  555 ship  as  possible  is inflicted on  those  dishoused.   The resolution  is. then required to be forwarded to  the  State Government. Sub-section (4) provides as follows : "As  soon as may be after the Corporation have declared  any area  to  be a clearance area, the  Commissioner  shall,  in accordance   with  the  appropriate   provisions   hereafter contained  in this Act, proceed to secure the  clearance  of the area in one or other of the following ways, or partly in one of those ways, and partly in the other of them, that  is to say-               (a)   by   ordering  the  demolition  of   the               buildings in the area; or               (b)   by   acquiring   on   behalf   of    the               Corporation  land  comprised in the  area  and               undertaking   or   otherwise   securing,   the               demolition of the buildings thereon." Sub-section  (1)  of s. 354RA requires  the  Corporation  to submit  the  clearance  order to the  State  Government  for confirmation.  Sub-section (4) reads thus : "Before  submitting the order to the State  Government,  the Commissioner shall- (a)  publish  simultaneously in the Official Gazette and  in three or more newspapers circulating within Greater  Bombay, a  notice stating the fact of such a clearance order  having been  made  and describing the area  comprised  therein  and naming  a  place where a copy of the order and of  the  plan



referred to therein may be seen at all reasonable hours; and (b)  serve  on  every  person  whose  name  appears  in  the Commissioner’s  assessment  book  as  primarily  liable  for payment  of  property tax leviable under this  Act,  on  any building  included in the area to which the clearance  order relates  and,  so  far as it is  reasonably  practicable  to ascertain such persons, on every mortgagee thereof, a notice stating  the  effect of the clearance order and that  it  is about   to  be  submitted  to  the  State   Government   for confirmation, and specifying the time within and the  manner in   which   objections   thereto  can  be   made   to   the Commissioner."                             556 Under  sub-s.  (5)  objections,  if  any,  received  by  the Commissioner  are  to  be  submitted  to  the   Improvements Committee and that Committee is entitled under sub-s. (6) to make  such modifications .in respect of the order as it  may think fit.  The matter is then to go to the Corporation  and thereafter   to  the  State  Government.   Sub-section   (7) provides that the provisions of Schedule GG to the Act shall have  effect  with  respect  to the  validity  and  date  of operation  of a clearance order.  We are not concerned  with the  rest  of  the provisions of S. 354RA.   Clause  (1)  of Schedule GG provides that as soon as the clearance order  is confirmed  by the State Government the Commissioner  has  to publish, in the same manner as a notice under sub-s. (4)  of S.  354RA,  a  notice  stating  that  the  order  has   been confirmed.   Clause (2) is important and we would  reproduce it.  It runs thus :               "Any  person  aggrieved by such  an  order  as               aforesaid,   or  by  the  State   Government’s               approval  of a redevelopment plan or of a  new               plan   may,   within  six  weeks   after   the               publication  of notice of confirmation of  the               order, or of the approval of the plan,  prefer               an appeal to a Judge of the City Civil  Court,               Bombay, whose decision shall be final." It is contended on behalf of the Corporation by Mr. Setalvad and also on behalf of the landlords by the Solicitor-General that  a  tenant  is entitled to raise an  objection  to  the making of a clearance order not only under cl. (b) of sub-s. (4)  of  S. 354RA but also in his appeal under  cl.  (2)  of Schedule  GG.  It is no doubt true that there is no  express mention  of tenants in either of these provisions  but  from the fact that cl. (a) of sub-s. (4) of s. 354RA requires the publication of the clearance order it would be reasonable to infer that the object of doing so is to invite objections at the instance of persons who would be affected by the  order. Since  tenants  would be affected by it, they fall  in  this class.    It  is  true  that  cl.  (b)  of  that   provision contemplates  actual service of notice only on  the  persons primarily  liable to pay property tax and on the  mortgagees of  the  property but not on others and also says  that  the time within and the manner in which objections to the  order could  be made to the Commissioner should also be  specified but it does not say anything regarding the tenants.  But  if because of this we were to hold that it would not be open to a  tenant or any other person who would be affected  by  the order, to lodge an objection to the proposed order it  would be making the publication of notice practically meaningless. Undoubtedly tenants are persons who would be affected by the Order.  Sub-section (2) of S. 354R casts  557 certain  duties  upon the Corporation with  respect  to  the persons who are likely to be dishoused in consequence of the



clearance  order.   It would, therefore,  be  legitimate  to infer  that  a corresponding right was  conferred  upon  the tenants to secure the performance of its duties towards them by  the  Corporation.  This right would be  in  addition  to their   interest  in  the  property  itself.    They   must, therefore,  be held to be persons who are entitled to  lodge an  objection to the proposed order.  Mr.  Shroff,  however, contends that cl. (b) of sub-s. (4) of s. 354RA confines the right to lodge an objection only to the persons specified in that clause and that there is nothing in the language of cl. (a)  from which a similar right can be deduced in favour  of other  persons.  It seems to us that in order to  give  full effect to the provisions of both cls. (a) and (b) of  sub-s. (4) the words "and specifying the time within and manner  in which  objections thereto can be made to  the  Commissioner" occurring at the end of cl. (b) should be read as  governing not  only  the rest of cl. (b) but also cl. (a).   We  would not-be  re-writing the section if we did so because  if  the object  of  the  legislature was to give a  right  to  lodge objections  only  to the persons specified in cl.  (4)  (b), sub-s.  (5) would not have said that the Commissioner  shall submit to the Improvements Committee  the  objections received under  sub-s.  (4),  but would  have said instead "objections received under cl.  (b) of sub-s. (4) That  a right has been conferred upon a tenant to  lodge  an objection is made further clear by the provisions of cl. (2) of  Schedule  GG  which we  have  earlier  reproduced.   The expression  " any person aggrieved" is sufficiently wide  to include not only a tenant but also an occupant of a building who  is  likely to be dishoused as a result  of  the  action taken  under  a  clearance order.   The  expression  "person aggrieved"  has not been defined in the Act and,  therefore, we are entitled to give it its natural meaning.  The natural meaning  would certainly include a person whose interest  is in  any manner affected by the order.  We are  supported  in this  by the observations of James L. J., pointed out in  Ex parte Sidebotham, In re Sidebotham.(1) A similar  expression occurring  in  s.  24(1) of the  Administration  of  Evacuee Property  Act,  1950  was the  subject  of  construction  in Sharifuddin v. R. P. Singh.(1) The learned Judges there held that  these words are of the widest amplitude and  are  wide enough  to  include  an.   Assistant  Custodian  of  Evacuee Properties. (1)  (1880) 14 Ch.D. 458 at p. 465. (2) (1956) I.L.R. 35 Pat. 920. 558 Since the right conferred by cl. (2) of Schedule GG upon  an aggrieved  person is a right to prefer an appeal  against  a clearance  order, as confirmed by the Government,  before  a Judge of the City Civil Court, Mr. Shroff contends that  the words  " aggrieved person" therein must necessarily  mean  a person  who  was  a party to the order.   It  is  true  that ordinarily a right of appeal is conferred on a person who is a  party to the proceeding but that would be so  only  where the proceeding is between certain parties.  A proceeding  of the  nature  contemplated  by  S.  354R  is  not,   strictly speaking,  a  proceeding  between  the  parties  ranged   on opposite  sides.   What is contemplated is the  exercise  of certain  powers  by the Corporation which  will  affect  the interests  of a variety of persons or a class or classes  of persons. and cl. (2) of ,Schedule GG gives a right to any of them  to prefer an appeal if his legal right or interest  is affected by any action of the Corporation taken in pursuance of its powers.



Upon  a reasonable construction of S. 354RA and Schedule  GG it  must, therefore, be held that they afford  opportunities to  tenants  to object to the clearance order.   It  follows from  this  that the restrictions on the tenants’  right  to hold  property  enacted  by  ss.  354R  and  354RA  are  not unreasonable and that the provisions are valid.  Mr.  Shroff agrees   that  if  the  restrictions  are   reasonable   his contention  that these provisions are unconstitutional  must fail. Upon  the view then that these provisions are valid it  must further follow that it was open to the plaintiffs to  prefer an  appeal before a Judge of the Civil Court.   Finality  is given  to  a clearance order after its confirmation  by  the Government  and its publication in the manner prescribed  in cl.  (2)  of Schedule GG subject only to the  result  of  an appeal  preferred under cl. (2) of Schedule GG by  a  person aggrieved.   If  no  such appeal is preferred  or  if  such, appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing  with  the learned City Civil Court Judge  we  hold that the plaintiffs’ suit was not maintainable. Accordingly we set aside the judgment of the High Court  and allow this appeal.  We, however, make no order as to costs. Appeal allowed. 559