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The Municipal Corporation of Greater Bombay Vs. M. Dawoodbhai and Bros. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 1312, 1461 to 1485, 1487, 1488, 1490 to 1524 of 1953
Judge
Reported inAIR1956Bom229
ActsPresidency Small Cause Courts Act, 1822 - Sections 41 and 43; Code of Civil Procedure (CPC), 1908 - Sections 115; Rent Act
AppellantThe Municipal Corporation of Greater Bombay
RespondentM. Dawoodbhai and Bros.
Appellant AdvocateY.B. Rege, Adv., i/b., Crawford Bailey and Co. Attorneys
Respondent AdvocateA.G. Manglorewalla, ;N.B. Lulla, ;M.R. Lulla and ;N.S. Jiradkar, Advs.
Excerpt:
.....an unduly long period given to a tenant might make the tenant indifferent in the matter of making earnest efforts to find alternative premises, and that is precisely what appears to have happened in the present proceedings. even so, the prospect of asking all the clubs and these poor tenants to vacate without giving opportunity to them to find alternative accommodation is not very pleasant, and any judge would naturally hesitate to throw all these tenants on the streets even though the order of eviction is claimed in the interests of a public purpose......applications were filed. 65 of them became ripe for hearing and in all these 65 applications the learned judge has passed an order directing the defendant in each one of these cases to vacate the premises in his occupation by 31-10-1957.this order was passed on 31-7-1953. after this order was passed, the municipality came to this court in revision. the revisional applications were admitted on 1-10-1953. but it appears that the opponents to those revisional applications were not all served in good time, with the result that the applications have remained undisposed of until today.2. i am told that the remaining 19 applications became ready for hearing subsequently and have been disposed of by an order made on 30-3-1955. mr. rege tells me that by this order the learned judge has directed.....
Judgment:

1. These are 63 revisional applications preferred by the Municipal Corporation of Greater Bombay against orders of eviction passed by the Court of Small Causes in 65 applications for ejectment filed by the petitioner. It appears that the property in question is known as Pathak Wadi and it is situated near Dhobi Talao. In this property there are 84 tenants. Some of the tenants are shops, some are clubs and a large number of tenements are oc-cupied by individual tenants.

The Municipal Corporation have decided to construct a sub-station in the place where the building stands and in order to be able to construct a sub-station they want to pull down the building. That is why, after purchasing the property in 1951, the Corporation gave a year's notice to all the tenants to vacate. By this notice, the tenants were required to vacate the premises on or before 31-5-1952.

Naturally the tenants were unable to vacate and the Corporation had to file applications under S. 41, Small Cause Courts Act. 84 applications were filed. 65 of them became ripe for hearing and in all these 65 applications the learned Judge has passed an order directing the defendant in each one of these cases to vacate the premises in his occupation by 31-10-1957.

This order was passed on 31-7-1953. After this order was passed, the Municipality came to this Court in revision. The revisional applications were admitted on 1-10-1953. But it appears that the opponents to those revisional applications were not all served in good time, with the result that the applications have remained undisposed of until today.

2. I am told that the remaining 19 applications became ready for hearing subsequently and have been disposed of by an order made on 30-3-1955. Mr. Rege tells me that by this order the learned Judge has directed that the tenants would have to vacate their respective premises on the date that would be fixed for the eviction of the tenants concerned in the present 63 revisional applications before me.

3. It must be conceded in favour of the opponents that the question as to what time should be granted to them for vacating would ordinarily be a question to be decided by the learned trial Judge in his discretion, and in matters which are left to the discretion of the learned trial Judge this Court would be very reluctant to interfere in the exercise of its re-visional jurisdiction.

Unfortunately, however, in the present case, though the learned Judge began his judgment by observing that in determining what time should be granted to the tenants he would consider the hardships of both the parties, he does not appear to have considered the hardship that would be caused to the public purpose for which the property was purchased by the Corporation. He has no doubt referred to the facts in favour of the tenants, as he should have done.

But, in order to be able to weigh the importance of these facts and to measure the gravity of the hardship which may be caused to the tenants, the learned Judge had obviously to bear in mind the hardship that may be caused to the public purpose on the other hand. This aspect of the matter does not appear to have been properly considered by the learned Judge at all.

It is clear that the Gban Clubs cater to the needs of nearly 2,000 members. It is also clear that the tenants who occupy these small tenements come from the poorer classes and in the exercise of his discretion the learned Judge was no doubt justified in giving them as much protection as he reasonably could before calling upon them to vacate the premises. But, on the other hand, this was not a case where a landlord was asking the tenants to vacate the premises for a private purpose.

The construction of a sub-station is intended to serve a public purpose, and if the Corporation has been advised that it is desirable and necessary that the sub-station should be constructed at an early date, putting obstruction in the way of the early construction of the substation itself might defeat the public purpose for which the. property has been purchased by the Corporation.

4. In this connection, it is important to bear in mind that the discretion to grant time to the defendants in such eviction proceedings has been vested in the trial Court under Section 43, Small Cause Courts Act, which authorises the trial Court to issue an order addressed to the bailiff of the Court directing him to give possession of the property to the applicant on such day as. the Court deems fit to make in such order.

This clause no doubt would enable the teamed Judge to mention a future convenient date on which possession should be delivered to the applicant, and in that sense discretion can be claimed by the learned Judge to accommodate the defendant who is being called upon to vacate.

But, on the other hand, it must be remembered that the proceedings instituted for eviction have succeeded, and Legislature by excluding the operation of the Rent Act in respect of local bodies, has recognised the necessity, the propriety and the desirability of not subjecting the public bodies to the provisions made in the interests of tenants of private persons.

In exercising the discretion vested in the trial Court under Section 43, it is of utmost importance to see that an order based upon the provisions of Section 43 does not defeat the very object of excluding the local bodies from the operation of the Rent Act.

The discretion in question must be judiciously and reasonably exercised, and though reasonable time may and should be given to the tenant who is ordered to be evicted, giving an unduly long time to the tenant might amount to the frustration of the decree itself and would clearly be inconsistent with the spirit of the section.

In exercising the discretion under Section 43. care must always be taken to see that the time granted to the defendant is not reasonably subject to the criticism that it is unduly or fantastically long.

5. There is another point to which it is necessary to refer. I tried to ascertain from the learned Advocates appearing for the Clubs as to the steps they have taken to find alternative premises for themselves, and the impression that I gathered from the facts disclosed to me by the learned Advocates is that the long period given by the learned Judge to them has lulled them into a feeling of security, with the result that they have moved very slowly in making efforts to find alternative premises.

The difficulties in obtaining alternative premises are well known; but it is not unlikely that an unduly long period given to a tenant might make the tenant indifferent in the matter of making earnest efforts to find alternative premises, and that is precisely what appears to have happened in the present proceedings.

Even so, the prospect of asking all the clubs and these poor tenants to vacate without giving opportunity to them to find alternative accommodation is not very pleasant, and any Judge would naturally hesitate to throw all these tenants on the streets even though the order of eviction is claimed in the interests of a public purpose.

Having considered all the relevant facts, it seems to me that the tenants would have sufficient breathing time to make arrangements for alternative accommodation if the order passed by the learned Judge is modified and the tenants are directed to vacate the premises on or before '1-1-1957.

If the learned Judge had weighed the importance of the public purpose for which the property was sought to be acquired against the inconvenience which was likely to be caused to the tenants, I might have hesitated to interfere with the order passed by him. Tenants in cases of this type should be given enough time to find alternative accommodation, no doubt, but the time given should not be so long that the tenants would thereby be encouraged not to take any steps in the direction of finding alternative accommodation on their own.

6. Mr. Rege for the Corporation appeared to be agreeable to give the opponents reasonable time even from to-day, and so I propose to modify the order passed by the learned Judge below by limiting the period given to the opponents up to 1-1-1957 instead of 31-10-1957.

In making this modification, I have taken into account the fact that the petitioner Corporation did not make diligent efforts to make the present applications ready for hearing at an earlier date and for the delay caused in bringing the applications on for hearing they must share a part of the responsibility.

7. In the result, the applications partlysucceed and the order passed in each one ofthem is modified by reducing the period givento the tenants from 31-10-1957 to 1-1-1957- Therewill be no order as to costs in these applications.

8. Applications partly allowed.


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