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Municipal Corporation of Greater Bombay Vs. Bhagwan Sakhram Salaskar - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 313 of 1972
Judge
Reported inAIR1974Bom272; (1974)76BOMLR373
ActsBombay Municipal Corporation Act, 1888 - Sections 351 and 352-A; Code of Civil Procedure (CPC), 1908 - Order 39, Rule 6; Constitution of India - Article 19(1)
AppellantMunicipal Corporation of Greater Bombay
RespondentBhagwan Sakhram Salaskar
Appellant AdvocateN.M. Heble and ;N.B. Shetve, Advs. for A.M. Desai, Attorney
Respondent AdvocateJ.S. Mainrekar, Adv.
Excerpt:
.....now considering. [1965]1scr542 ,that a tenant has, both under the transfer of property act as well as under section 12 of the bombay..........1969 on the landlord of the said premises under section 351 read with section 352-a of the bombay municipal corporation act. the plaintiff's contention in the present suit is twofold. first, that hem as a tenant, is entitled to be served with a notice under the said sections. that contention is to be found in paragraph 2 of the plaint. secondaly, it is submitted in paragraph 3 of the plaint that tenancy right being an interest the bombay rent act within the meaning of article 19(1)(f) of the constitution, the plaintiff cannot be deprived of the same without due process of law and the relevant provisions of the bomaby municipal corporation act are ultra vires the constitution in so far as there is no provision for giving notice to the tenants.2. as far as the first contention is.....
Judgment:

1. This is an appeal from an order passed by Judge Slanbhag of the bombay City Court on the 30th August 1971 granting an interlocutory injunction restraining the defendant. Corporation from demolishing a room of which the plaintiff is a tenant in certain premises at Vhandup in Bombay. The Municipal authorities have served a notice dated 27th November 1969 on the landlord of the said premises under Section 351 read with Section 352-A of the Bombay Municipal Corporation Act. The plaintiff's contention in the present suit is twofold. First, that hem as a tenant, is entitled to be served with a notice under the said sections. That contention is to be found in paragraph 2 of the plaint. Secondaly, it is submitted in paragraph 3 of the plaint that tenancy right being an interest the Bombay Rent Act within the meaning of Article 19(1)(f) of the Constitution, the plaintiff cannot be deprived of the same without due process of law and the relevant provisions of the Bomaby Municipal Corporation Act are ultra vires the Constitution in so far as there is no provision for giving notice to the tenants.

2. As far as the first contention is concerned, there is no substance in the same for the terms of Section 351 are clear and unambiguous and provide for notice under that section only having to be given to the person who is carrying on the unauthorised construction work in question, or who is the owner of the building or the work in question. Section 352-A is only a provision of an emergency nature consequential on Section 351 and has no independent application. A notice under Section 351 read with Section 352-A is therefore, not required to be given to tenant unless, in a given case, it is the tenant who is carrying out the unauthorised construction of work. The language of section 351 may be compared with the language of section 488, proviso (b), which requires that giving of a notice to the occupier when. Pursuant to the notice under section 351, the actual work of defoliation is to be taken in hand by the corporation, but that is not the stage with which I am concerned in the present case. This view which I have taken on a plain reading of the provisions of section 351 is supported by an unreported decision of K.K. Desai, J. dated 10th March 1971' in A.O. No. 337 of 1969. though in the said decision the learned Judge has not, in terms, referred to the language of that sectioin. As against that decision, the learned advocate for the respondents sought to rely on two unreported decisions of Bal, J., one dated 25th June 1969 in A.O. No. 252 of 1965 in A.O. No. 377 of 1968, but I am afraid, those decisions do not lay down that a notice is required to be given under section 351 to a tenant who is not himself carrying out the unauthorised work. I fail to see how those decisions can have any application to the question which I am now considering. I have, therefore, come to the conclusion that the plaintiff does not have even a prima facie case on this point to entitle him to the interlocutory relief at the hands of the court.

3. As far as the second contention is concerned, it has now been held by the supreme court in the case of Bombay Municipal corporation V. Pancham. : [1965]1SCR542 , that a tenant has, both under the Transfer of property Act as well as under Section 12 of the Bombay Rents. hotel and Lodging House Rates (control) Sct, 1947 and interest in the demised premises which squarely falls within the expression 'property' occurring in sub-clause (f) on clause (1) of Article 19 of the Constitution. Though the said case did not relate to the provisions of section 351 of the Bombay Municipal Corporation Act, those observations would be equally applicable to the question that has been raised in paragraph 3 of the plaint in the present case viz., whether section 351 of the Bombay Municipal Corporation Act is ultra vires Article 19(1)(f) of the Constitution by reason of the fact that it makes no provisions for the giving of notice to a tenant of the premises in question. Under the circumstances, having regard to the decision of the Supreme Court in the Bombay Municipal Corporation's case, and having regard to the fact that the plaintiff claims to be a tenant of the suit premises, I must hold that the plaintiff has certainly a prima facie case in regard to his challenge to the vires of Section 351 of the Bombay Municipal Corporation 351 of the Bombay Municipal Corporation Act. That being the position, the plaintiff is entitled to the injuction sought in prayer (a) of the motion. I, therefore, confirm the order made by the court below and dismiss this appeal with costs.

4. Appeal dismissed.


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