1. These two appeals arise from decrees passed by the City Civil Court, Bombay, dismissing the appellants' suits. Although these appeals which have been fully and ably argued on both sides are heard together, they will have to be dealt with separately. The principal argument was addressed in First Appeal No. 224 of 1957 and for the sake of convenience, I will deal with that appeal first.
2. The facts giving rise to suit No. 2011 of 1956, from which appeal No. 224 of 1957 arises, are shortly these. The plaintiffs are tenants of a building known as 'Mor Bungalow', situate at Tejpal Road, Vile Parle. It appears that the house was constructed in or about the year 1910. On 28-12-1954 a notice under Section 354 of the Bombay Municipal Corporation Act was served upon defendant No. 1, which is a limited company and the owner of he property, requiring the first defendant to do certain repairs. On 14-2-1956 a second notice under Section 354 was served upon defendant No. 1 asking the first defendant to pull down the building as stated in the notice within a specified period of sixty days. Defendant No. 1 then wrote to the plaintiffs on 9-3-1956 intimating to them about the notice served upon it, dated 14-2-1956, and by the letter it asked the plaintiffs to vacate within fifteen days. The plaintiffs wrote a letter to the first defendant, telling it that steps were being taken by which they would endeavour for the withdrawal of the notice. On 22-3-1956 the plaintiffs, by their letter to the City Engineer, asked him to withdraw the notice and also asked for an interview in the company of their architects. On 26-4-1956 the City Engineer gave a reply to the plaintiffs refusing to withdraw the notice served on defendant No. 1. On 13-7-1956 the plaintiffs gave notice of suit as required by Section 527 of the Act and on 31-8-1956 the present suit was filed.
3. In the suit, the plaintiff alleged that the notice issued to the first defendant under Section 354 was mala fide issued by the City Engineer in collusion with the first defendant. They also alleged that Section 354 was ultra vires and invalid as it conferred on the Municipal Commissioner and arbitrary, unrestricted and unfettered discretion to order the pulling down of any structure and also because the section did not provide for the parties concerned a reasonable opportunity of being heard. The plaintiffs further contended, that Section 354 was void as it affected the plaintiffs' fundamental rights guaranteed to them under Article 19(1)(f) of the Constitution.
4. The fist defendant, which is a private limited company, filed a written statement and disputed the averments made by the plaintiffs. In the suit, apart from the first defendant, the owner, the plaintiffs made the Bombay Municipal Corporation as the second defendant in the suit, and by a written statement filed by the Corporation, it was contended that the notice issued under Section 354 was not mala fide, that the Court could not interfere with the executive authority conferred by Section 354 and that it denied the allegation made against it or collusion. Further, it was contended that Section 354 was not void and that the plaintiffs were not entitled to the reliefs claimed by them.
5. Upon the pleadings of the parties, the learned Judge of the City civil Court, Mr. M.G. Chitale, framed several issues, and in the end, he dismissed the plaintiffs' suit, holding, inter alia, that the allegation of mala fides was not made out, that the Court could not interfere with the discretion exercised by the authority under Section 354 and that the section was not void, notwithstanding Article 19 of the Constitution, as contended. Feeling aggrieved by the decree, the plaintiffs have come up upon this appeal.
6. Upon this appeal, Mr. Phadke appearing for the plaintiffs has taken up three points. It has been urged, firstly, that the notice issued to the first defendant under Section 354 is mala fide both tin fact and in law. It is then urged that the authority acting under Section 354 must act judicially and in the present case the authority had not acted judicially, while issuing the notice under Section 354. It is urged, in the last place, that Section 354 was void, in view of Article 19(1)(f) of the Constitution. I will deal with the points in the order in which they have been taken.
7. Now, with regard to the point of mala fides, it would be interesting to refer to the allegations made in the plaint. After referring to introductory facts, the plaint states:
'The plaintiffs say that the said notice dated 14-2-1956 is mala fide and issued by the said City Engineer of the 2nd defendant in collusion with the 1st defendant. The plaintiffs further say that the 1st defendant have deliberately from time to time allowed the said premises to deteriorate without complying with all the notices issued by the said City Engineer of 2nd defendant in respect of the repairs of the said premises for over last 10 years. The plaintiffs say that the said City Engineer has failed to take proper and effective steps including authorising the plaintiffs to carry out the said repairs at their own costs and deduct the same from the rents payable by them to the 1st defendant and has issued the said notice now solely at the instance of the 1st defendant for the reasons hereinafter stated'.
The plaint then continues:
'The plaintiffs deny that the said premises are in a ruinous condition, likely to fall or dangerous to any person occupying, resorting to or passing by the same. The plaintiffs have obtained advice from an expert architect and are advised that after a few repairs have been carried to the said premises, the life of the said premises would be considerably lengthened.'
Then the plaint continues:
'The plaintiffs say that the 1st defendant have caused this notice to be issued by the City Engineer of the 2nd defendant for merely using the same as a subterfuge to achieve their object of ousting the plaintiffs from the said premises and to defeat the rights and interests of the plaintiffs in the said premises as the tenants.
The plaintiffs say that the issue of the notice by the City Engineer of the 2nd defendant is without any justification whatsoever and the said City Engineer has declined the plaintiffs any opportunity of placing their case before him for withdrawal of the said notice. The plaintiffs, therefore, submit that the said notice should be set aside by this Honourable Court'.
8. Now, as regards the collusion alleged by the plaintiffs, although the first plaintiff gave evidence, there is no reliable evidence to show that there was any collusion between the first and the second defendants. Even as regards the alleged mala fides, in fact, the plaintiffs have not given satisfactory and cogent evidence to prove the allegation. Indeed, Mr. Phadke appearing for the plaintiffs conceded that upon that point he was unable to rely, but he strongly relied upon the other aspect of the contention. he contended that there were legal mala fides present in the case. Now, the notice under Section 354 was issued by the City Engineer of the name of Mr. Carnac. Mr. Carnac has not been examined in this case. On behalf of the plaintiffs, the first plaintiff gave evidence and on behalf of the second defendant, one Patel, who is in the service of the second defendant, has given evidence. Now, it would appear from the evidence of the first plaintiff that the plaintiff saw the Municipal Commissioner at Vile Parle when the Municipal Commissioner was upon a visit on his monthly round and the plaintiffs met the Municipal Commissioner in the presence of the Corporators of the locality. According to the first plaintiff, the Municipal Commissioner told the plaintiffs that the City Engineer would give a hearing to the plaintiffs' architects. On the question of mala fides, the first plaintiff stated that the notice under Section 354 was mala fide as the Municipal Commissioner had not given them a chance of being heard and also because the City Engineer Mr. Carnac did not get the opinion of an independent architect as requested by them. He further stated in the course of his evidence that the grievance of the plaintiffs was that their architect was not heard by Mr. Carnac, although the Municipal Commissioner had assured that he would be heard, so that according to the evidence, it would appear that the first plaintiff said that the notice under Section 354 was mala fide, because a chance of being heard was not given to the plaintiffs and because the City Engineer failed to take the opinion of an independent architect as requested by the plaintiffs.
9. Mr. Phadke for the plaintiffs relies principally upon two circumstances to show that there were legal mala fides in this case. He says that upon an estimate made by the first defendant's architect the cost of repairs were in the neighbourhood of a sum of Rs. 90,000 or Rs. 98,000 and that so far as the first plaintiff was aware, the estimate made by the Municipal Engineers did not exceed a sum of Rs. 13,000 or Rs. 17,000. Patel, who has been examined on behalf of the second defendant, was cross-examined by the plaintiffs and he said that the costs of repairs was one of the factors that was taken into account while issuing a notice for demolition of a building. Now, it would appear that an employee of the second defendant of the name of Darukhanwala had made a report in November 1955 and the fact of this report was put to Patel in his cross-examination and the report has been marked in the proceedings as Exhibit J. The report is dated 24-11-1955. It is to be borne in mind that the report was not made by Patel who has given evidence in the case. The report was made by Darukhanwala and the only person who could speak to the contents of the report would be Darukhanwala and not Patel. Although, therefore, Patel could speak to the fact of Darukhanwala making the report, the contents of the report could not be proved in the absence of the evidence of Darukhanwala who himself made the report. Now, the two facts on which reliance is placed strongly for the purpose of showing that there were legal mala fides are the fact that costs of repairs, according to the defendant's architect, were in the neighbourhood of s. 90,000 or Rs. 98,000 and the other fact, according to the plaintiffs, is about the rental value of the property. In this case we are concerned with the notice issued by the City Engineer, Mr. Carnac, but curiously enough, Mr. Carnac was not called as a witness in this case. Any how one has to proceed upon the evidence as led, but it is remarkable that if the plaintiffs relied upon legal mala fides in this case, this case was not specifically put to the witness on behalf of the second defendant, viz. Patel in his cross-examination. It is true that so far as the rental value is concerned, Mr. Phadke has strongly relied upon that circumstance. But it would appear that there is no reliable evidence to show that the rental value was one of the factors which was taken into consideration by Mr. Carnac when he issued a notice under Section 354. It was open to the plaintiffs to request the Court that the Court might call either Mr. Carnac as a witness in the case or Darukhanwala who made the report, Exhibit J, as a witness in the case, if the second defendant did not choose to examine either Mr. Carnac or Darukhanwala. The witness who has been examined in this case is Patel. He is an Assistant Engineer and it would appear from his evidence that he visited the bungalow several times. In 1955 he visited the place in March, in May and in November. In 1956 also he visited the place in the months of January, March and May and it would appear from the notice, Exhibit B, that he has counter-signed this notice. Although Mr. Phadke may have some grievance as regards the way in which the trial has proceeded, it is not possible for us to accept his contention on the materials as are present in this case. The satisfaction with which we are concerned, is the satisfaction of Mr. Carnac, the City Engineer, who has issued the notice under Section 354 and although there is some evidence either about the costs of repairs or about the rental value, it is not possible to accept the contention that the evidence is sufficient to show that legal mala fides have bene established in this case. We, therefore, agree with the view taken by the learned Judge that the notice is not bad because of the mala fides alleged by the plaintiffs.
10. The contention based upon Section 354 is much more serious, and in order to understand the contention, it would be necessary to refer to the terms of the section. Section 354, by Sub-section (1), provides:
'If it shall at any time appear to the Commissioner that any structure (including under this expression any building, wall or other structure and anything affixed to or projecting from, any building, wall or other structure) is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Commissioner may, by written notice, require the owner or occupier of such structure to pull down, secure or repair such structure, and to prevent all cause of danger therefrom.'
The title under which this section occurs is 'Dangerous Structures' and one has only to read the section to realize that the intention of the section is to secure public safety. The authority issuing notice under Section 354 has to objectively consider certain facts. After having ascertained the facts objectively, he has to satisfy himself as to whether or not he would issued a notice under Section 354. First, he has to consider whether a building is in a ruinous condition or is likely to fall or is in any way dangerous to any person occupying, resorting to or passing by such structure. This embraces not merely the persons who occupy the building but also those who go to the building and also those who happen to pass by the building. Therefore, the authority issuing notice under Section 354 has to ascertain these facts objectively. he has then to consider another fact objectively, which is, having regard to the state of the property, what is the degree of risk to the public safety and having ascertained this, he has then to consider whether he would issue a notice to the owner or occupier requiring him either to pull down the building or to repair it. It is quite clear, therefore, that the authority issuing notice under Section 354 has to ascertain certain facts objectively and then to satisfy himself. In other words, the satisfaction is his own satisfaction, i.e., the subjective satisfaction of the authority issuing notice under Section 354.
11. Now, in this case a notice was issued first in the year 1954 followed by a notice, which is challenged, and which was issued in 1958. A building which needed repairing in 1954 may, in conceivable circumstances, require pulling down in 1956. But whether the building should be pulled down or repaired is a matter of which the authority is the sole judge, and so long as the authority keeps himself within the limits of the authority given to him by Section 354, his discretion is absolute. The authority must act bona fide. He must not act capriciously or from an improper motive. But if he considers the facts objectively and comes to a particular conclusion, his satisfaction would not then be open to challenge, provided he has come to the conclusion honestly and bona fide. The contention which has been taken by Mr. Phadke is that Section 354 does not make provision for the right of a person to be heard. The short answer to this contention is that Section 354 does not provide for a hearing to be given to persons such as the plaintiffs in this case. When the contention is that the authority must act judicially, what the Court is concerned with is to see whether the section under which the right is claimed requires a hearing to be given. If the section of a statute requires that a hearing should be given, then surely the approach of the authority must be judicial approach. But the alternative argument which has been advanced by Mr. Phadke is that even if the authority may not be bound to act judicially, the principles of natural justice require that a party should be heard before his rights are affected in any way. So far as the judicial approach is concerned, there is no difficulty in holding that the notice issued under Section 354 is an executive act or an executive order and when by statute a provision is not made for a hearing, it is impossible to accept the contention that the authority is bound to act judicially; nor is, in my opinion, the contention tenable that although the section does not provide for a hearing, the rules of natural justice require that a party should be heard before his rights are affected. For the view which I take there is a good deal of authority in support and quite a slender authority against. The question whether the approach should be judicial has been decided in a number of cases, of which I would refer to two by way of illustration.
12. The first of these is the decision of the Supreme Court reported in Province of Bombay v. Khushaldas, 53 Bom LR 1: AIR 1950 Bom 222. It would be enough, I think, to set out two paragraphs of the head-note which correctly summarise the position:
'When the law under which the authority is making a decision itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well recognised principles of approach are required to be followed.
Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari.'
In particular, the observations of Mr. Justice Das, as he then was may be referred to with advantage. This is what Mr. Justice Das says at p. 39 of the report (Bom LR) : (at p. 253 of AIR):
'It is well established that if the Legislature simply confides the power of doing an act to a particular body, if in the opinion of that body it is necessary or expedient to do it, then the act is purely an administrative i.e., an executive act, as opposed to a judicial or quasi-judicial act, and, in the absence of proof of bad faith the Court has no jurisdiction to interfere with it, and certainly not by the high prerogative writ of certiorari.'
Then at p. 40 (of Bom LR): (at p. 253 of AIR) this is what he says:
'Sometimes the Legislature may entrust a power to a specified authority to do an act for a certain purpose. Even in such a case, the Legislature may, nevertheless, by appropriate language, leave not only the determination of the necessity or expediency for doing the act but also the determination of the necessity or expediency for doing the act for that purpose as a composite matter to the opinion, satisfaction or discretion of that authority. In such a case what is a condition precedent for the doing of the act is not the actual existence of the particular purpose but the opinion of he specified authority that the purpose exists. In other words, the authority is also made the sole judge of the existence of the purpose, for otherwise it cannot form its opinion as to the necessity or expediency of doing the act for that purpose.'
In view of the language contained in Section 354, there can be no doubt that the satisfaction is the satisfaction of the authority issuing a notice under Section 354. It is his mental satisfaction and so long as the authority acts within the limits of the authority given to him, it is impossible to say that he is bound to act judicially. The expression occurring in Section 354 is 'If it shall at any time appear to the Commissioner.' Now, this expression is a well known expression. Several statute use expressions like these: for examine, 'If it appears to,' 'If in the opinion of' or 'If so and so is satisfied.' The particular expression which was relevant in that case was 'If in the opinion of.' This is a much stronger expression that the expression. 'If it shall at any time appear to the Commissioner.' When it is said that a conclusion is to be formed by the opinion of the authority concerned, one would require a grater degree of satisfaction than would be the case where a view is to be formed as it appears to the authority concerned. So that the remarks of their Lordships of the Supreme Court in connection with the expression 'If in the opinion of' are concerned in this case with an expression of less amplitude and, therefore, although satisfaction is necessary, the degree of satisfaction may not be the same as may be necessary where a conclusion is to be formed as a result of an opinion of the authority concerned.
13. The other case to which reference may be made is the one reported in Nathubhai Gandabhai v. State of Bombay, 57 Bom LR 199 this is what the learned Chief Justice says:
'Now, when the Legislature leaves the establishment of a fact to the subjective determination of any authority, the Legislature clearly intends that the decision of that authority with regard to the establishment of that fact is final. There must be a mental satisfaction of the authority in question that a particular fact is established. That fact is not a justiciable fact; it is not a fact which has got to be objectively established in a Court of law. If the authority comes to Court and states that it has applied its mind to the particular question and it is satisfied that the fact has been established, the condition is clearly complied with. It is true that the subjective satisfaction must be a genuine subjective satisfaction. It must not be a colourable satisfaction, it must not be a satisfaction influenced by any external considerations, it must not be a satisfaction which is arbitrary or capricious; but if the satisfaction is a bona fide satisfaction, then the Court has no jurisdiction to question the decision and to investigate as to the correctness of the decision arrived at by the authority.'
With respect, we agree with this view.
14. But Mr. Phadke has strongly relied upon a decision of this Court reported in Lalbhai Tricamlal v. Municipal Commr. of Bombay, 10 Bom LR 821. It must be conceded that this authority does support Mr. Phadke's contention. But the difficulty in his way is the judgment of their Lordships of the Supreme Court : 1SCR621 . Section 354 was the section which Mr. Justice Macleod was considering in that case and this is the very section which is the subject of construction in this case. But one cannot escape the conclusion that in view of the decision : 1SCR621 , the weight of this authority must be taken to be considerably shaken. Incidentally, it may be observed, as I would presently show, that if an authority is not, by statute, required to act judicially, it is not legitimate to urge that in such a case there is any question of the principles of natural justice arising, and in this connection, I would refer again to some authorities.
15. There are two cases to which reference may be made. The first of these is the case decided on 18-9-1956 in Spl. C.A. No. 233 of 1956 and the other is the one reported in Bapurao Dhondiba v. State of Bombay : AIR1956Bom300 . The language of the section which was under consideration of Spl. C.A. No. 233 of 1956 was:
'Where the Municipality is of opinion that any place used for the disposal of the dead is in such a state as to be, or to be likely to become, injurious to health, it may submit its opinion with the reasons therefor to the Commissioner.....'
In that case the learned Chief Justice points out:
'A person performing ministerial, administrative or executive functions is under no obligation to observe rules of natural justice. He is not dispensing justice, nor is he discharging judicial or quasi-judicial functions, and therefore, as just said, he is under no obligation to act in the same way as an authority, person or tribunal would have to act if they were discharging judicial or quasi-judicial functions.'
In : AIR1956Bom300 it was observed:
'When the Legislature requires an authority to adopt the judicial process and the judicial approach then any order passed by such an authority without hearing the party to be affected by it would be bad because it would violate a fundamental principle of natural jusitce. But in dealing with an administrative order the approach must be different, and it would be erroneous to import into the consideration of an administrative order the principles of natural justice.'
These two cases are enough to show also that the view taken in 10 Bom LR 821 is considerably shaken. In this case the authority concerned was the City Engineer, a responsible municipal official. He has ascertained certain facts objectively in order to come to a conclusion and that conclusion is based upon his subjective satisfaction. It would, therefore, be difficult, if not impossible, to set aside the view formed by a responsible official unless it is suggested that he had acted capriciously or from any motive other than proper. In our view, therefore, the notice issued under Section 354 is not open to challenge either because the authority did not act judicially or because principles of natural justice were not observed.
15a. The next challenge to Section 354 is based upon the provisions contained in Article 19(1)(f) of the Constitution. In order to understand the argument, it is necessary to note how exactly the plaintiffs' contention stands. The notice under Section 354 was issued to the first defendant, the owner of the house and the landlord, whose tenants are the present plaintiffs. By the notice the second defendant required the first defendant to pull down the house as stated in the notice. Now, the plaintiffs are tenants on the premises and they say that by reason of the notice requiring the first defendant to pull down the building, their rights to hold the property as tenants are affected. Article 19(1)(f) provides:
'All citizens shall have the right to acquire, hold and dispose of property.'
16. Mr. Phadke relies upon the fact that, according to him, the plaintiffs have a right to hold and dispose of the property. He says that in so far as the second defendant required the first defendant to pull down the house as stated in the notice, their right to hold and dispose of the property has been violated. Now, the plaintiffs as tenants are undoubtedly entitled to hold the premises in their possession. But it is not easy to follow as to how their rights to dispose of the property are affected, because having regard to Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the tenants cannot sub-let the premises in their occupation. But Mr. Phadke would seem to be right that the plaintiffs as tenants should be entitled to hold the property.
17. Mr. Mehta appearing for the second defendant contends that the Article to apply to this case is not Article 19(1)(f), but Article 31 of the Constitution. Now, Article 19(1)(f) is controlled by Article 19(5) is the sense that the right to hold property can be curtailed by placing reasonable restrictions upon the exercise of the right, provided the restrictions are in the interests of the general public. It is not disputed that if a restriction is placed upon the right in the interests of the public, the plaintiffs cannot be heard to say that their rights are in any way violated. But Mr. Phadke's argument is that his rights under Article 19(1)(f) of the Constitution to hold property are violated and the restriction sought to be placed is not a reasonable restriction. Article 31 of the Constitution deals with, what one may call conveniently, 'right to property', and Article 31(1) deals with deprivation of property save by authority of law. Article 31(2) then provides:
'No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate.'
In this connection, Mr. Phadke relies upon the case reported in Dwarkadas v. Sholapur Spinning and Weaving Co. Ltd., : 1SCR674 and says that Article 31 deals with deprivation of property as a result of compulsory acquisition or requisition and as pointed out by Mr. Justice Mahajan, 'Article 31(1) and (2) deals with the same topic of compulsory acquisition of property.'
He argues if Article 31 deals with compulsory acquisition and requisition of property, then that Article will have no application to the present case but the proper Article to apply to Article 19(1)(f). Mr. Mehta appearing for the Corporation, however, contends that Article 19(1)(f) cannot apply that the Article which will and must apply is Article 31 and in this connection he refers to a decision of this Court given by Mr. Justice Gajendragadkar and Mr. Justice Gokhale on 20-4-1956 in Appeal No. 67 of 1955. That was a case arising under Section 380 of the Bombay Municipal Corporation Act. The appellant in that case was a lessee of a plot of land from the trustees of the Jewish Cemetery and by a notice dated 22-4-1955 issued under Section 380 he was asked to remove the hut consisting of shops, intimating to the appellant that in the event of non-compliance with the notice, the Assistant Health Officer would take measures for removing the hut under Section 489 of the Act. It was that order which was challenged by the appellant upon a writ petition which was dismissed and the appellant came up in appeal. It would appear that if the language of Section 354 is compared with the language of Section 380, there is no essential difference between the two provisions. Mr. Justice Gajendragadkar, as he then was, was considering the provisions of Article 19 and Article 31 of the Constitution. After referring to, what is called, 'police power' and 'eminent domain' the expressions familiar to American lawyers and jurists, he observed:
'After all, in considering the question as to whether any impugned piece of Indian legislation is valid or not, it would be essential to look to the relevant terms of the articles in the Constitution itself and the nature of the legislative enactment impugned. Article 19 and 31 have been considered by Indian High Courts and the Supreme Court on several occasions in the past. The nature of the ground covered by these two respective articles had no doubt given rise to conflicting opinions. But the recent decisions of the Supreme Court have now established some broad conclusions with regard to the scope and effect of these two articles and it would be necessary for us to adopt and apply the said conclusions in dealing with the point raised before us by Mr. Chagla.'
Then Mr. Justice Gajendragadkar referred to several cases including the one reported in State of Bombay v. Bhanji Munji, : 1SCR777 . After referring to another case reported in Saghir Ahmed v. The State of U.P., : 1SCR707 , this is what the learned Judge said:
'This decision would show that, in order that Article 31 should be applicable, it is enough that there has been deprivation of property: it is not necessary that the deprivation of the property or the right to hold property should be preceded or accompanied by acquisition or taking over of the said property or the said right by the State.'
: 1SCR777 this is what the learned Judge said:
'In this case the Supreme Court was dealing with the validity of the provisions contained in Sections 5(1) and 6(4)(a) of the Bombay Land Requisition Act, 1948, and it was held that by virtue of the order passed substantially the lessee had been deprived of his property and so Article 19(1)(f) could not be applied. 'When every form of enjoyment', said the leaned Judge, 'which normally accompanies an interest in this kind of property it taken away leaving the mere husk of title, Article 19(1)(f) is not attracted.' In the case before the Supreme Court the right to occupy the premises had gone as also the right to transfer, assign, let or sub-let, and what was left was, 'but the mere husk of title in the lease-hold interest.' It was, therefore, held to be deprivation which attracted Article 31 and not restriction which would have attracted Article 19(1)(f).'
In considering the scope of Article 19(1)(f), he observed:
'If the appellant has thus been substantially deprived of his property, the statutory provision under which an order causing this deprivation can be passed must be governed by Article 31 and not Article 19(1)(f); and if that is so, the validity of the impugned portion of Section 380 cannot be challenged having regard to the provisions of Article 31(5) and (6) of the Constitution of India.'
In the face of this authority, therefore, there can be no question, in view of the fact that the property has been ordered to be pulled down, that the case is one of deprivation of property and inasmuch as after the property is pulled down, the property cannot be enjoyed, Article 19(1)(f) cannot clearly apply because the question of the applicability of Article 19(5) would arise only in case where the applicability of Article 19(1)(f) would arise. In point of fact, Article 19(1)(f) is controlled by Article 19(5). The question, therefore, would arise only if there is immediate property to hold in which case, of course, he question of reasonableness of restrictions or otherwise would arise. This is the view taken by a Court of co-ordinate jurisdiction and, apart from anything else, good sense and respect for the decision of a Court of co-ordinate jurisdiction require that it should be followed. We must, therefore hold that Article 19(1)(f) has no application and that Article 31 would apply.
18. But assuming Mr. Phadke is right, one may as well consider the validity of the argument based upon Article 19(1)(f) since the point has been argued. The object of Article 19(1)(f) and the object of Article 19(5) is -- if one may put it in that way -- to strike a balance between the right of a citizen and the requirements of public safety. There can be no question that the intention underlying Section 354 is to ensure public safety. This is clear, having regards to the language of the section itself. When a structure is required to be pulled down, the idea is to secure the safety of an occupier, the safety of a person going to the structure, the safety of the persons happening to go by the side of the structure and living in the neighbourhood of the structure. It would, therefore, be difficult to contend that the restriction sought to be placed by Article 19(5) (Section 354?) is not a reasonable restriction. In judging of the reasonableness of a restriction one may refer to the case on which reliance has been placed by Mr. Sorabji. It is reported in State v. Heman Alreja, : AIR1952Bom16 . A part of the head-note says:
'There is a very important principle in construction a statute. It must always be presumed that a Legislature knows the limits of its competence and that it is acting within the limits set up by the Constitution and not outside those limits. If possible a construction should be placed upon a statute which would put it within the limits of the competence of the Legislature rather than outside those limits.'
The question can be looked at from another point of vies. There can be no question that what is primarily intended by the enactment of Section 354 is the securing of public safety. Section 354 occurs under the heading 'Dangerous Structures.' There is obviously, therefore, a policy underlying the provision and if there is a policy underlying the enactment of a section, then it is well settled that such a provision is not open to challenge. In Natwarlal Ambalal v. Bombay State, 58 Bom LR 221 this Court has occasion to consider the provisions of the Drugs Act and the rules made thereunder and it was pointed out:
'Where a law confers upon an authority unfettered, absolute and uncontrolled discretion, the law would be bad, where the question of policy underlying the law is not involved. If, on the other hand, the question is one of policy underlying the law as to how the law is to be enforced, and as to how the provisions of the Act are to be carried out, then a discretion, be it unfettered uncontrolled and absolute, is not bad.'
'When a person exercise discretion which is vested in him, all that one has to do is that he has to exercise his discretion to the best of his judgment, reason and justice, and not according to his private opinion. In other words, the refusal must be based upon a rational basis and ought not to be the result of caprice.'
This case was followed with approval in the case reported in Govindji Vithaldas v. Municipal Corporation, Ahmedamad : AIR1959Bom26 . In the case reported in : AIR1956Bom300 Section 37(3) of the Bombay Police Act, 1951, was challenged and this Court held that Section 37(3) of the Act is a restriction imposed by the Legislature in the interests of public order and in the interests of the general public upon the freedom guaranteed to the citizen under Article 19(1)(b) and (d) of the Constitution, and that restriction is a reasonable restriction. Now, a restriction may be imposed as a matter of policy or in the case of an emergency. Bapurao Dhondiba's case ((S) : AIR1956Bom300 ) is a case of the latter description. But there can be no doubt that a restriction can be placed upon the right enjoyed under Article 19. In this case it may be not merely a case of policy but also of emergency. If the authority takes the view that a building is required to be pulled down, provided the authority comes to a bona fide conclusion, it makes no difference that contrary to the conclusion the building does come to fall. Having regard to the authorities. We are satisfied that assuming that Art. 19(1)(f) applies, the restriction imposed is a reasonable restriction in the interests of public safety grounded upon a principle of policy and, in our view, Section 354 is not, therefore, open to challenge in view of Article 19(5) of the Constitution. Mr. Mehta has pointed out - and I think rightly - that the view of the authority acting under Section 354 is also open to correction under Section 66(1)(c) of the Bombay Municipal Corporation Act. That is a safeguard to keep an authority in his proper place and under control and where there is a check upon the activity of an authority issuing a notice under Section 354, it is hardly reasonable to contend that the restriction imposed is not a reasonable restriction. A view, similar to the view which we are taking, was taken by this Court in Special C. A. No. 233 of 1956 to which reference has been made already, and one may refer to it again, though briefly. It was a case where, as in this case, the right conferred upon a citizen under Article 19(1)(f) was challenged and whet eh point was argued unsuccessfully, it was pointed out after citing the case reported in Jeshingbhai Ishwarlal v. Emperor, : AIR1950Bom363 , that the restriction was a reasonable restriction. it is true that in that case the conclusion was subject to the review of the Director of Local Authority. If that was the safeguard in that case, here was a safeguard provided in Section 66(1)(c) of the Act. It seems to us, therefore, that if the restriction placed upon the enjoyment of a right guaranteed under the Constitution is a reasonable restriction, then of course, the challenge based upon Article 19(1)(f) cannot be accepted.
19. As there are the only points argued in this appeal and as these points do no succeed, the appeal must fail.
20. It is necessary next to deal with Appeal No. 560 of 1956. it may be pointed out that this appeal involves four questions, two of which are common. Those common questions are (1) with regard to the obligation of the authority to act judicially under Section 354 and (2) the challenge to Section 354 based upon Article 19(1)(f). As regards the latter question, a further point has ben argued by Mr. Chandrachud on behalf of the appellants in this case, which I propose to deal with in this appeal only.
21. Now, the facts giving rise to F.A.No. 650 are shortly these. Four plaintiffs all residing and carrying on business at 148, Kalbadevi Road Bombay, are monthly tenants in a building which consists of a ground floor, a first floor, a second floor and a third floor. In September 1954 the plaintiffs and other tenants addressed a letter to the Executive Engineer, Bombay Municipality, requesting the authority to require the landlord to effect certain repairs. A reply was received to this letter in which it was pointed out that notices were issued to the third defendant, who is the landlord, requiring him to carry out certain repairs. There was some correspondence between the parties and the plaintiffs' case as laid in the plaint was that the order made by the first defendant, requiring the third defendant to pull down the structure was mala fide and amounted to an abuse of the powers conferred upon defendants No.s 1 and 2 under Section 354. As the third defendant had received a notice, the third defendant took out proceedings under Section 507 and the plaintiffs contended that the Municipal Commissioner did not consider the pros and cons of the matter, the he did not apply his mind and that in asking the third defendant to pull down the building, he had failed to exercise his discretion in a judicial manner. Some what similar contentions were raised in this suit and the plaintiffs claimed a declaration and an injunction, declaration that the orders made by the first defendant, requiring the third defendant to pull down the structure in occupation of the plaintiffs were ultra vies and mala fide and injunction against defendants No.s 1 and 2 restraining the enforcement of those orders.
22. The plaintiffs' claim was disputed by the defendants Nos. 1 and 2. It was averred that there was no proper notice as required by Section 527 given by the plaintiffs. I was disputed that the action taken by defendants Nos. 1 and 2 was mala fide. It was alleged that Section 354 did not contravene Article 19 and it was also contended that the second defendant was not required to act judicially under Section 354. The contentions raised by defendant No. 3 were similar to those urged by defendants Nos. 1 and 2.
23. The learned trial Judge Mr. B.C. Vakil, raised ten issues for determination and it would appear that the parties agreed that issues Nos. 1, 2, 3, 4, 6 and 7 were to be heard as preliminary issues. The parties went to trial. Before the trial, a notice of motion had been taken out by the plaintiffs. Upon the notice of the motion coming up before the Court, defendants Nos. 1 and 2 undertook not to enforce the notice till the disposal of the suit and defendant No. 3 undertook not to take proceedings under Section 507. On 26-12-1955 when these undertakings were given, it was agreed, if I amy adopt that phraseology, that the Municipal Commissioner was to hear the plaintiffs and the third defendant. it was further agreed that the opinion of the Commissioner come to after hearing the plaintiffs and the third defendant was to be considered by the Court at the hearing. On the 17-9-1956 the opinion of the Commissioner dated 4-2-1956 was, by consent, put upon the record. That opinion will be found at page 84 of the record. Arguments were then addressed and the matter stood C.A.V. and the judgment was pronounced on 28-9-1956.
24. Now, Mr. Chandrachud appearing for the plaintiffs has made a grievance that although issues Nos. 1, 2, 3, 4, 6 and 7 were agreed to as preliminary issues and issue No. 5 was not one of the issues agreed to be tried as a preliminary issue, the learned Judge has wrongly recorded a finding on issue No. 5 in the negative and against the plaintiffs. That issues Nos. 1, 2, 3, 4, 6, and 7 were agreed to as preliminary issues would appear from the Roznama at page 19 of the record. It may, however, be pointed out that an entry in the Roznama does not amount to a judicial order. In fairness to the plaintiffs, however, it may be pointed out that in the decree mention is made of issues Nos. 1, 2, 3, 4, 6 and 7 as agreed to by way of preliminary issues, and the question which arises for consideration upon the grievance made by mr. Chandrachud is whether any prejudice has been caused to the plaintiffs in so far as the learned Judge has recorded a findings had no opportunity to give evidence upon issue No.5. Issue NO. 5 runs as follows:
'Are the orders passed by Defendant No.1 or Defendant No.2 or either of them null and void and of no binding effect on any one as contended in paragraphs 3 and 4 of the written statement?'
Paragraphs 3 and 4 of the plaint (the expression 'written statement' appear to be a mistake) deal with the provisions contained in Section 354. It is stated in paragraph 3 that 'the order passed by defendants Nos.1 and/or 2 for puling down the structure is mala fide, and that the same amounts to an abuse of the powers conferred upon defendants Nos. 1 and/or 2 under Section 354 of the Municipal Act.'
It is also stated that the discretion conferred upon defendant No. 2 under the Act is judicial. The plaint then goes on to say:
'The plaintiffs hence submit that defendant No. 2 has exercised his powers under the Act in an arbitrary and capricious manner, leading to an irresistible conclusion that the orders passed are mala fide and as such ultra vires the powers of defendant No.2'.
As regards paragraph 4 of the plaint a grievance is made that the second defendant did not carefully consider the pros and cons of the situation, that he did not apply his mind to the facts of the case and that he had given notice to defendant No.3 to pull down the structure to the detriment of the plaintiffs and other occupants of the premises and it was alleged that defendant No.2 had failed to exercise his discretion in the matter in a judicial manner.
25. As one peruses paragraph 3, one is, I think entitled to say that the attack made by the plaintiffs made not so much with regard to the manner in which the discretion was exercised as the absence of judicial approach which was necessary under Section 354 but which approach was not observed by the authority acting under Section 354. The effect of paragraph 4 would seem to be the same because in paragraph 4 it is clearly stated that the authority did not consider the pros and cons of the matter, did not apply his mind when notice to pull down the structure was given to the detriment of the plaintiffs and that there was no exercise of the discretion in a judicial manner. But I shall assume in favour of Mr. Chandrachud that the attack was also as regards the fact that the order was challenged as being mala fide in the sense that the plaintiffs alleged mala fides both in fact as well as in law. Now, if issue No. 5 covers such a plea, Mr. Chandrachud would seem to be right that proper opportunity was not given to him to lead evidence upon issue No. 5 and that the learned Judge was wrong in recording a finding on issue No.5 without permitting the plaintiffs to give evidence upon the issue. I may, however, pint out that I have grave doubts myself as to whether issue No. 5 in fact cover the plea. However, I will assume in favour of Mr. Chandrachud that issue No. 5 covers the plea as alleged. But what happened at the trial is, I think, eloquent. ON 17-9-1956 arguments were addressed by Counsel for the parties. On that day the opinion of the commissioner which he recorded on 4-2-1956 was put in by consent and that opinion is in the following terms:
'I have heard the parties in this matter and in their company carefully inspected the building floor by floor. I have also been the parties a further opportunity to place their points of view upon me after the inspection of the building. Having considered these submission, and in the light of the condition of the building as disclosed during the inspection, I am of the opinion that the order for demolition issued by the C.E. (City Engineer) is proper and justified int eh circumstances of this case.'
So that at the time when the arguments were addressed, the opinion of the municipal Commissioner was before the Court and before Counsel appearing for the parties. Although, therefore, the plaintiffs had alleged mala fides in the plaint, it is, I think, reasonable to assume that Counsel appearing for the plaintiffs saw the weakness of the contention, in view of the opinion expressed by the Municipal Commissioner, and if I am not mistaken little or no substance remained int eh contention of the plaintiffs as regards mala fides, in view of that option, and Mr. Mehta appearing for the second defendant points out that when the arguments were addressed by Counsel for the parties, it was conceded at the Bar that no more evidence was to be led upon issue No. 5 and this seems to be probable in view of the opinion of the Municipal Commissioner put in the case on that very day. One has to remember certain facts in this connection. The opinion was the opinion of so high an official as Mr. Nayak. There can be in such a case no question about the bona fides exercised or discretion conferred upon the authority. The matter was before so experienced a Judge as Mr. Vakil. If issue NO. 5 was still to be tried on evidence, it is difficult to imagine that Mr. Vakil would short out evidence upon that issue. The more likely thing is that it was conceded that in view of the opinion of the Municipal Commissioner, no more evidence was to be led. It happened as though issue No. 5 stood exactly upon the same footing as issues No.s 1, 2, 3, 4, 6 and 7. What is more, the Advocate appearing for the plaintiffs is Mr. Sakharadande, now a Judge of the City Civil Court, and if perhaps he took the view that in view of the opinion of the Municipal Commissioner, there was a little to be said on the question of mala fides, it seems to us that he was perfectly within his rights. I think, therefore, that having regard to all the circumstances which I have mentioned above, there is no substance in the grievance made by Mr. Chandachud that he was refused a hearing on issue No. 5, which means that so far as the question of mala fides is concerned, there is not evidence either of mala fies in fact or of mala fides in law. In the result, therefore, we are satisfied that no prejudice has been caused to the plaintiffs.
26. What then remains is to notice two contentions taken up in this appeal. The first of these is as regards the want of proper notice under Section 527 of the bombay Municipal Corporation Act. Now, the learned Judge has given three reason as to why he considered that the notice was not proper. In the first instance, he said that the notice was given to the Municipal Commissioner and the requirement of Section 527 was that the notice must be given to the Municipal Corporation and, therefore, the second reason given by him was that the notice should have been given to the Municipal Corporation and the third reason was that the names of the plaintiffs were not given in the notice with requirement of Section 527. A comparison of the names mentioned in the plaint and the names mentioned in the notice makes an interesting reading. The first plaintiff in the suit is Nathubhai Dhulaji, a firm. In the notice Nathubhai Dhulaji is mentioned as an individual. The second plaintiff is Bhagwandas Ramchandra, a firm. Bhagwandas Ramchandra is not one of the persons giving the notice. Daulatram Kundanmal, a firm, is the third plaintiff, while he is named individually in the notice. Bansidhar Bajrangala and Co., is the person mentioned in the notice and the fourth plaintiff is Pannalal Hariram who appears to be the successor-in-interest of Bansidhar Bajranglal. In the notice mention is made of one Badshah Cold Drink Depot which again is not one of the plaintiffs in the suit. It is difficult to say that Nathubhai Dhulaji, a firm, and Nathubhai Dhulaji, and individual are the same person. It is again difficult to say that Daulatram Kundanmal, a firm, and Daulatram Kundanmal, and individual, are the same person. After all, Nathubhai Dhulaji and Daulatram Kundanmal as mentioned in the plaint are firm-names and a firm name is not always the name of the proprietor of a firm. Therefore, the only person described with particularity is the successor of Bansidhar Bajranglal which is represented now by Pannalal Hariram. The learned Judge was therefore, right in taking the view that the names of the parties were not mentioned with particularity in the notice. But this, in our opinion, is not a substantial contention, because even if plaintiffs Nos. 1 and 3 are rejected on the ground that they are firms while they are mentioned in the notice as individuals, plaintiff No. 4 still survives and there is no reason why with regard to plaintiff No.4 the notice is not a proper notice.
27. But the more serious objection with regard to the notice is the objection based upon the contention that the proper person to be sued is the Municipal Corporation and no the Municipal Commissioner. Section 4 (a) shows that one of the Municipal Authorities is the Corporation and Section 5 (2) provides:
'The corporation shall, by the name of the Municipal Corporation of Greater Bombay,' be a body corporate and have perpetual succession and a common seal and by such name may sue and be sued.'
Again Section 61(1) of the Act shows that one of the duties of the Corporation is to secure and to the move dangerous building and places. Section 527, by Sub-section (1), provides:
'No suit shall be instituted against the corporation or against the Commissioner, the General Manager or a Deputy Commissioner, or against any municipal officer or servant, in respect of any act done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act.'
The provision contained in Section 527 is, therefore, mandatory and the language would seem to be similar to the language as used in Section 80 of the Code of Civil Procedure. As observed by their Lordships of the Privy Council in the case reported in Bhagchand v. Secretary of State, 29 Bom LR 1227: AIR 1927 Bom 176, Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. If, therefore, one of the duties cast upon a Corporation is to secure or remove dangerous buildings, there can be no question that the person to be sued is not the Municipal Commissioner but the Corporation and it is not sufficient compliance with Section 527 to say that a suit would be filed against the Municipal Corporation. It may be that the objection is one of technicality, but if a certain form is prescribed, according to which a notice is to be given in a particular form, I think it is essential that the form prescribed should be strictly adhered to, because, after all, the object of given a notice is not merely to show as to what claim the plaintiff is making in the suit but also to show against whom the claim is made. Moreover, the learned Judge was right in taking the view that the Municipal Commissioner was not the proper person a be sued. The Municipal Commissioner is not a body corporate. he could not, therefore, be sued. It is not, therefore, sufficient compliance with Section 527 to give notice to the Municipal Commissioner and not to give notice to the Municipal Corporation. That a notice given to the Municipal Commissioner is not in order would be seen by reference to the case reported in . Although, therefore Mr. Chandrachud may be right that even if the first three plaintiffs disappear from the record, the fourth plaintiff can sustain the suit, we cannot accept the contention that the notice is good in spite of the grave infirmity that the proper person to be sued is the Corporation and not the Municipal Commissioner.
28. But Mr. Chandrachud contended that no notice was necessary to given under Section 527 because of the mala fides which he had alleged in the plaint. There is no substance in this contention also. The plaintiffs have not proved the mala fides, alleged by them. As I have pointed out earlier, the theory of mala fides was abandoned, in view of the opinion given by the Municipal commissioner and if the notice was bona fide, then there is no question that Section 527 requires that a notice is to be given in respect of any act done in pursuance of the Act. It is also in respect of the intended execution of the Act. In our view, therefore, the learned Judge was right in coming to the conclusion that the suit was not maintainable for want of proper notice as required by Section 527.
29. The contention based upon mala fides has no substance, because we have already held that the plaintiffs had really no evidence to give, in view of the opinion given by the Municipal Commissioner. I cannot imagine that a Judge would proceed to dispose of a suit when one of the issues still remained to be heard and decided on evidence, unless sit be upon the footing that it was conceded at the Bar that in view of the opinion of the Municipal Commissioner the plaintiffs had no evidence to given as regards the mala fides.
30. Mr. Chandrachud appearing for the plaintiffs adopted the arguments of Mr. Phade both as regards Section 354 was open to a challenge in view of Article 19(1)(f) of the Constitution. But with regard to the latter point Mr. Chandrachud, as was to be expected, took up a further point. He contended that in order that a restriction may be reasonable, it is necessary that the person upon whom the restriction is placed is heard and he contended that no restriction is reasonable unless the person affected by the restriction is given a hearing. In this connection, he relied upon a decision of this Court reported in : AIR1950Bom363 . At p. 550 of the report (Bom LR): (at p. 368 of AIR). the learned Chief Justice points out:
'But what is much more important, and to my mind what is fatal to the validity of the restriction placed by the Legislature, is the fact that the person against whom an order of externment is to be made has no right whatever to be heard in his defence before he is asked to leave his home and hearth and go and reside in some other place. There is no obligation upon the authority to tell him what he is charged with or what are the grounds against him which make it incumbent upon the Government to ask him to leave his home town. Nor is there any obligation upon the authority to hear the person against whom the order is intended to be made in his defence before the order of made.'
Now, Jeshingbhai's case : AIR1950Bom363 , was a case dealing with an externment order and, therefore, the question was with regard to the personal liberty of the citizen and the curious feature which was pointed out by the learned Chief Justice was that whereas int eh case of an order of detention opportunity is given to the person detained, no such opportunity is given to the person against whom an order of externment is made, and Mr. Chandrachud pointed out to us what he considered to be a contrast between the cases decided in : AIR1950Bom363 and Abdul Rahiman Shamsooddin vs. Emperor , : AIR1950Bom374 ; Emperor v. Abdul Rahiman. It was pointed out in the latter case - and I think correctly - that there was a provision whereby the person against whom an order was made had a right to be heard and also had a right of appeal to the Provincial Government and it was said, against with respect, correctly that the principle in Jeshingbhai's case : AIR1950Bom363 , would not apply to the case reported at page 558. But Jeshingbhai's case on which reliance has been placed strongly was considered in a later case which is reported in : AIR1956Bom300 . The learned Chief Justice after referring to the case at p. 422 (of Bom LR): (at p. 302 of AIR) of the report distinguished that case from the case of Bapurao Dhondiba, (S) : AIR1956Bom300 . At p. 423 of the report (Bom LR): (at p. 302 of AIR) this is what he stated:
'But even assuming that provision should be made for representation to be made by all the citizens of Greater Bombay, it is still difficult to understand on what point or issue that representation should be made, because the Legislature has left it to the satisfaction of the Commissioner of Police as to whether there is an emergency which calls for the issuign of such an order for the preservation of the public order. It is not any one else's satisfaction, it is not only any else's judgment, that has to determine or to decide whether such an order should be issued or not. It is only the opinion and the decision of the Commissioner of Police that is conclusive in the matter.'
it is true that was a case in which one of the elements considered was the element of emergency. But in this case the principle underlying Section 354 is a principle about the policy of the law and if the satisfaction is the salification of the authority concerned and the question of public safety is invoked, then I think it is not reasonable to hold that merely because a person has no right to be heard, that, therefore, the restriction placed upon the right is not a reasonable restriction. To the same effect are the observations in Spl. C.A.No. 233 of 1956, to which I have referred above.
31. There is one point to which reference may be made before finishing consideration of the argument and that is the point urged by mr. Rediz. Mr. Rediz seems to contend - if I understand him correctly - in view of the amendment of Article 31 in 1955 the decisions of the Supreme Court to which Mr. Justice Gajendragadkar has referred, do not remain as binding authorities. But we have a two fold difficulty. We have not merely a decision of a Division Bench to explain but we have a current of authorities of the Supreme Court to which reference has been made exhaustively in the judgment delivered by Mr. Justice Gajendragadkar. If Mr. Rediz is right, the forum is not this Court and we do not propose to express any opinion upon the point urged by him.
32. In the result, therefore, all the contentions must fail. It follows that the appeal must fail.
33. As regard costs in F.A. No. 224 of 1957, we think that the fair order to make would be that the appellants and the first respondent will bear their own costs. But the appellants will pay the costs of respondents No. 2. As regards costs in F.A. No. 650 of 1956 the appellants and respondent No. 3 will bear their own costs. But the appellants will pay the costs of respondents Nos.1 and 2 in one set.
34. Appeals dismissed.