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J. Hiralal Vs. Corporation of the City of Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 5228 of 1981
Judge
Reported inAIR1982Kant137; 1981(2)KarLJ437
ActsConstitution of India - Articles 12 and 226; Karnataka Municipal Corporations Act, 1977 - Sections 299 and 303
AppellantJ. Hiralal
RespondentCorporation of the City of Bangalore and ors.
Appellant AdvocateR.N. Byra Reddy and ;U.L. Narayana Rao, Advs.
Respondent AdvocateK.N. Subba Reddy, ;V. Krishnamurthy and ;S.V. Subramanayam, Advs.
Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 48a: [h.v.g. ramesh, j] grant of occupancy right - rejection of form no.7 finding of the land tribunal that the land is not a tenanted land petitioner cultivating the land originally as a tenant and thereafter by virtue of the registered sale deed as owner of the land - as on 1.3.1974 or immediately prior to it the land was a tenanted land, vested with the government held, even if the sale in favour of the petitioners husband is held to be invalid, originally it was tenanted land and the land was vested with the government. the land tribunal has to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. - but, alas, that simple matter is.....order1. an otherwise simple case of an issue of a building licence to the owner of property by the local authority with which others and even a tenant in occupation of an existing building is not generally concerned, is the subject matter of this writ petition. but, alas, that simple matter is not so simple and has become unnecessarily complicated by reason of strained relationship between the landlord and tenant that is symptomatic of many a metropolitan city like bangalore, to which the local authority of the area and government, have made their contribution, the result of which has been a series of proceedings between the tenant and the landlord before that very local authority, government, subordinate courts and this court. unfortunately, this writ petition will not also end their.....
Judgment:
ORDER

1. An otherwise simple case of an issue of a building licence to the owner of property by the local authority with which others and even a tenant in occupation of an existing building is not generally concerned, is the subject matter of this writ petition. But, alas, that simple matter is not so simple and has become unnecessarily complicated by reason of strained relationship between the landlord and tenant that is symptomatic of many a metropolitan city like Bangalore, to which the local authority of the area and Government, have made their contribution, the result of which has been a series of proceedings between the tenant and the landlord before that very local authority, Government, subordinate Courts and this Court. Unfortunately, this writ petition will not also end their disputes and may possibility conclude the validity of the licence issued to the landlord. With this preface it is appropriate to notice the facts that are necessary for a proper disposal of the questions that arise for determination in the case.

2. A building with various tenements situated at Haines Road, Civil Station, Bangalore, initially given Municipal Corporation No. 27, some time thereafter given Nos. 27, A/27, 1, B/27, C/27, D/27,27/A, 27/B and 27/1) but are currently given Municipal Corporation Nos. 78 to 86 was owned by one K. Phoolchand. On 3-41978 the said Phoolchand sold the said building to respondent No. 3 under a registered sale deed of that date (Annexure-H). As on the date of the agreement to sell and the date of sale, while the petitioner claims that he was in occupation of two independent buildings or two tenements (hereinafter referred to as tenements) bearing Municipal Corporations Nos. 82 and 83 as a tenant of the vendor and thereafter his vendee corresponding to old Municipal Corporation No. 27, respondent No. 3 so far as this proceeding is concerned admits that the petitioner was and is in occupation of tenant No. 83 only. But, there is no dispute between them that on the purchase of the building by respondent No. 3 the petitioner has recognised him as his landlord.

3. On 8-3-1979, respondent No. 3 has filed a petition u/s. 21(1)(h) of the Karnataka Rent Control Act of 1961 in H.. R. C. No. 185 of 1979 in the Court of the then Civil Judge, Civil Station, Bangalore which now stands transferred to the Court of Small Causes, Bangalore, for eviction of the petitioner and his son H. Jawaharlal from tenement bearing No. 83 which is being resisted by them and is still pending disposal before the said Court.

4. On 21-5-1979 respondent No. 3 made an application under the provisions of the Karnataka Municipal Corporations Act of 1976 (Karnataka Act No. 14 of 1977) (hereinafter referred to as the Act) before the Corporation of the City of Bangalore (hereinafter referred to as the Corporation) for issue of a building licence for re-construction of the aforesaid building as set out in the plan annexed to that application. On an examination of that application, the Commissioner of the Corporation, the competent authority, without notice to the petitioner or examining his alleged claim, sanctioned a building licence on 27-5-1979 bearing No. LP 845179-80 (Annexure-L) with some modifications in the plan proposed by respondent No. 3.

5. As a step to undertake the reconstruction of the building as per the aforesaid licence, respondent No. 3 on or about 29-11-1980 started demolition of a wall on the Western portion of tenement No 82 which triggered off various proceedings. A brief reference to those proceedings is necessary for appreciating the contentions urged by both sides.

6. On 29-11-1980 one Jawaharalal, who is the son of the petitioner, filed 0. S. No. 10349 of 1980 in the Court of the City Civil Judge, Bangalore for a permanent injunction to restrain respondent No. 3 from demolishing the building and interfering with his and father's possession of tenement No, 82 with an application for a temporary injunction. On the application made for temporary injunction in the said suit, the X Additional City Civil Judge to whom the said suit was assigned, ordered notice to respondent No. 3. Before 1. A. No. I could be 'considered in the said suit, the petitioner on 2-12-1980 filed 0. S. No. 10358 of 1980 in the Court of the City Civil Judge, Bangalore for the very reliefs sought by his son in 0. S. No. 10349 of 1980 with an application for temporary injunction. On the same day, the I Additional City Civil Judge, to whom the said suit was assigned, granted an ex parte temporary injunction in the said suit.

7. On entering appearance in both the suits, respondent No. 3 sought for vacating the temporary injunction issued in 0. S. No. 10358 of 1980 filed by the petitioner and opposed the application made by his son Jawharalal in 0. S. No. 10349 of 1980. On a consideration of the contentions urged before him, the learned I Additional City Civil Judge, by his order dt. 12-1-1981, prima fade found that the petitioner was not in occupation of tenement No. 82 and, therefore, rejected the application for temporary injunction in 0. S. No. 10349 of 1980 filed by Jawaharlal and vacated the ex parte temporary injunction issued in 0. S. No. 10358 of 1980 filed by the petitioner. Against the said order of the learned City Civil Judge, Jawaharalal filed an appeal before this Court in M. F. A. No. 36 of 1981 on 15-1-1981 which was dismissed by Sabhahit, J. on 28-1-1981. On 18-21981 the petitioner also filed an appeal against the said order of the learned City Civil Judge in M. F. A. No. 413 of 1981 before this Court and the same was withdrawn by him on 27-3-1981 and was accordingly dismissed on that day.

8. Both the said suits filed by the petitioner and his son are still pending disposal before the City Civil Court with the dismissal of M. F. A. No. 36 of 1981, one would have expected that there was no impediment for the demolition and reconstruction of the building by respondent No. 3. But, unfortunately that did not happen.

9. On 4-2-1981 Jawaharlal again filed one more suit in 0. S. No. 10089 of 1981 for the very relief he had sought in his earlier suit 0. S. No. 10349 of 1980 and again obtained an ex parte temporary injunction. OP entering appearance, respondent No. 3 again sought for vacating the temporary injunction and urged that the order made was nothing but an abuse of the process of the Court. While the temporary injunction in the second suit was in force, the petitioner moved the Government as also the Corporation to direct respondent No. 3 not to demolish tenement No. 82. On that application, and at the directions of Government, the Corporation on 6-2-1981 directed respondent No. 3 not to demolish tenement No. 82. On 10-2-1981 Jawaharlal withdrew his second suit and the same was, therefore, dismissed by the City Civil Judge as withdrawn by him.

10. On 12-2-1981, respondent No. 3 moved this Court in Writ Petition No. 2578 of 1981 under Art. 226 of the Constitution challenging the order dt. 6-21981 made by the Corporation. On 24-21981 Sabhahit, J. allowed the said writ petition and quashed the said order. In that writ petition, the petitioner had sought leave of the Court to implead him as a party-respondent but the same had not been permitted by the Court. On 25-21981 the petitioner filed appeal in W. A. No. 272 of 1981 against the said order of Sabhahit, J. and obtained stay of the operation of the said order. On 9-3-1981 the Corporation also filed an appeal against the said order of Sabhahit, J.

11. When the said appeals came up for hearing before the Division Bench, on 24-3-1981, the Corporation filed a memo stating that it did not propose to enforce the order impugned in the writ petition, out of which the said appeals had arisen. By this the Corporation took the stand that the order made by it, was not a legal and valid order and, therefore, it did not propose to enforce the same against respondent No. 3. On the said memo filed by the Corporation, the Division Bench disposed of the said appeals on 24-3-1981 vacating the order made by Sabhahit, J. and dismissed Writ Petition No. 2578 of 1981 filed by respondent No. 3 as having become unnecessary. But, so far as the appeal filed by the petitioner, the Division Bench observed that it was open to him to work out his remedy, if any, in an appropriate proceeding. The result of the memo filed by the Corporation and the order made by the Division Bench in the said appeals was, that the Corporation had not made an order directing respondent No. 3 not to demolish the building.

12. On 25-3-1981 the petitioner presented this writ petition seeking the following reliefs :

'(a) To issue a writ of certiorari or any other writ, order or direction, quashing the L. P. No. 845/79 and the sketch annexed thereto - vide Annexure-L;'

(b) To issue a writ of mandamus or any other writ, or order or direction, directing the respondents 1 and 3 to stop demolition of any portion of the premises in the occupation of the petitioner bearing new Nos. 82 and 83, inclusive of the wall covered in the order dt. 6-2-1981 vide Annexure-0

(c) To issue an interim order of stay by way of direction, to the 3rd respondent not to demolish the premises bearing Door Nos. 82 and 83 of Haines Road, Civil Station, Bangalore including the wall covered by the order dt. 6-2-1.981 vide Annexure-O, and pending disposal of this petition an ad interim order of stay may be granted.

(d) For costs of -this writ petition and for grant of such other and further relief/reliefs as this Hon'ble Court may deem fit to grant in the circumstances of the case.'

On 26-3-1981 Bhimiah, J. issued, rule nisi and granted the interim order sought by the petitioner, as a result of which respondent No. 3 has not undertaken the further demolition of tenement No. 82.

13. The petitioner claims that he is in occupation of tenements bearing present Nos. 82 and 83 for more than 40 years and that on the sale of the building also to respondent No. 3, he has continued in occupation of them as his tenant. He alleges that the demolition of tenement No. 82or any portion thereof or any wall supporting the same on the basis of the impugned building licence would make it impossible for him to continue in occupation of that tenement as also the other tenement No. 83. On these facts, the petitioner contends that the Commissioner should have notified him, considered his grievance and in any event ascertained the true facts before issuing a licence to respondent No. 3, which has not been done by him. Lastly, the petitioner contends that issue of a licence having regard to its own earlier stand and its volte face is a clear case of legal mala fides and is, therefore, liable to be quashed.

14. Respondents 1 and 2 who are represented by their counsel Sri K. N. Subba Reddy, have not filed their return and have been content in producing their records, leaving it to respondent No. 3 to justify their action.

15. Respondent No. 3 has filed his return justifying the action of the Corporation as also his action in demolishing the wall. Respondent No. 3 admits the tenancy of the petitioner of tenement No. 83, but seriously disputes his tenancy of tenement No. 82. He claims that so far as the issue of a building licence to him, the petitioner as tenant or otherwise or any other person cannot be heard to say anything before the Corporation. Respondent No. 3 also claims that his action to demolish any or every portion of the building cannot be examined, controlled or supervised by the Corporation. Lastly, he has urged that the conduct of the petitioner disentitles him to any equitable relief under Art. 226 of the Constn.

16. The contentions urged by Sri R. N. Byra Reddy, learned counsel for the petitioner to invalidate the impugned licence, countered by Sri. V. Krishna Murthy, learned counsel for respondent No. 3, supported by a large number of authorities cover a large ground and, therefore, it is more appropriate to consider them under the following points:

(i) Whether the petitioner is in occupation of tenement bearing present Municipal Corporation No. 82 owned by respondent No. 3?

(ii) Whether the 'Corporation of the City of Bangalore' is a local authority that falls within the meaning of the term 'State' occurring in Art. 12 of the Constn. and administers public law?

(iii) Whether the Corporation is required to notify, consider the claims of an occupant before granting and issuing a building licence to the owner of such building?

(iv) Whether the licence issued to respondent No. 3 suffers from legal mala fides?

(v) Whether the action of respondent No. 3 in demolishing any portion of tenement bearing present Municipal Corporation No. 82 can be interfered with by the Corporation or by this Court?

(vi) Whether the conduct of the petitioner disentitles him for relief under Art. 226 of the Constn?

RE: POINT NO. (I).

17. Sri Byra Reddy urged that the finding recorded of an interlocutory proceeding by the City Civil Court or this Court is not binding on this Court in dealing with this proceeding and the same should, therefore, be ignored and decided afresh. In support of his contention Sri. Byra Reddy strongly relied on the ruling of the Supreme Court in Arjun Singh v. Mohindra Kumar : [1964]5SCR946 .

18. Sri. Krishna Murthy, does not dispute that the finding recorded on the interlocutory application is not binding on the very Court that has to determine the suit or even this Court in this proceeding. But, he urged that it is improper for this Court to ignore the said finding. In support of his contention Sri Krishna Murthy strongly relied on the ruling of Narayana Pai, J. (as he then was) in Multani v. Shah Abdu Turab Qudari, (1962-40 Mys LJ 709).

19. The petitioner asserts that he has continued to be in occupation of tenements Nos. 82 and 83 as tenant even after respondent No. 3 purchased the building. In answer to this, respondent No. 3 asserts that the petitioner is only in occupation of tenement No. 83 as his tenant and not of tenement No. 82. Whether the assertion of the petitioner or the rival assertion of respondent No. 3 is true or not, cannot be decided without recording evidence on that question. In a proceeding under Art. 226 of the Constn. a High Court does not normally embark on an inquiry on disputed questions of fact, though it has the power to record evidence and decide a question of fact, if it considers necessary and appropriate in any given case. In my view, this is not one of those cases in which this Court should record evidence on the disputed question of fact and decide the same.

20. As noticed earlier in the suits filed by the petitioner and his son Jawaharlal, the competent civil Court, for purpose of deciding the interlocutory applications, has found that the petitioner is not in occupation of tenement No. 82 and that finding has not been disturbed by this Court either in the appeal filed by the petitioner or his son.

21. Both the aforesaid suits filed by the petitioner and his son Jawaharlal are still pending disposal before the City Civil Court is not also in dispute. In deciding the said suits, on recording evidence, the City Civil Court is not bound by its own earlier finding or the finding recorded by this Court and can take an entirely different view is well settled legal position and does not require an authority to support the same.

22. But, the question is whether before the trial Court decides the suits, the result of which cannot be predicted at this stage, can this Court ignore that finding in deciding this proceeding.

23. In my view, whatever be the legal position, it would be most improper to ignore the finding of the Civil Court affirmed by this Court, in a different proceeding or jurisdiction and over again embark on an inquiry in a proceeding under Art. 226 of the Constn. If it is otherwise. it would only create chaos and confusion in the administration of justice by the already overburdened Courts. Without any doubt such a situation has to be avoided by this Court that too while exercising its jurisdiction under Art. 226 of the Const. For these reasons, I find it difficult to uphold the contention of Sri Byra Reddy.

24. In Arjun Singh's case, : [1964]5SCR946 , the Supreme Court was dealing with the scope of 0. 9, R. 13 of the Code of Civil Procedure and the tenability of an application made for setting aside an ex parte decree thereto by the trial Court and exhaustively dealt with the true scope of interlocutory orders made in a civil proceeding, their binding character and other related matters. In that case, the Supreme Court did not examine a similar situation as has arisen in this case and, therefore, the principles enunciated therein does not bear on the question at all. On the other hand, the principle enunciated in Multani's case (1962 (2) Cri LJ 709) (Mys) governs the question.

25. As I have reached the conclusion that the finding recorded by the City Civil Court and affirmed in appeal by this Court in M. F. A. No. 36 of 1981 cannot be ignored, it is necessary to hold that the petitioner is not in occupation of tenement No. BE as tenant of respondent No. 3 for purpose of this proceeding also. 1, therefore, answer point No. 3 in the negative and against the petitioner. But, it is necessary to point out that this finding is only for purpose of examining the validity of the other contentions urged for the petitioner in this petition only and the same cannot be depended upon by the parties in other Courts in deciding the main controversies that arise in the aforesaid suits.

RE : POINT NO. (II).

26. Sri Byra Reddy urged that any action taken by the Municipal Corporation, a local authority, is reviewable by this Court under Art. 226 of the Constn.

27. The City of Bangalore Municipal Corporation Act of 1949 (herein after referred to as the 1949 Act) under which a Municipal Corporation for the City of Bangalore was first established by converting the City Municipality that was then in existence or the Act under which the said Corporation is continued, do not define the Municipal Corporation. In this view, it is necessary to ascertain its meaning from text books on the subject.

28. American (Vol. 56) defines a as hereunder:

'Generally; municipal corporations.

A municipal corporation is a body politic created by organizing the inhabitants of a prescribed area, under the authority of the legislature, into a corporation with all the usual attributes of a corporate entity, but endowed with a public character by virtue of having been invested by the legislature with subordinate legislative powers to administer local and internal affairs of the community, and by virtue of its creation as a branch or agency of the State Government to assist in the administration of the Government of the State. Another definition of a municipal corporation is that it is the body politic and corporate constituted by the incorporation of the inhabitants of a city, town, or village for the purposes of the local Government thereof. Other similar definitions have been given by the Courts, incorporating the general concepts of a body politic and corporate, established by or under the authority of the legislature, consisting of the inhabitants of a prescribed area, constituting a legal entity, with perpetual succession under a corporate name, and authorized to exercise subordinate specified powers of legislation and administration relative to local affairs.

The term 'municipal' relates not only to a town or city as a territorial entity, but it also pertains to local self-government in general, and, in a broader sense, to the internal Government of a State or nation. In that sense, every corporation formed for governmental purposes is a municipal corporation. In its primary sense, however 'municipal' means 'pertaining to a town or city or to its local Government', and it is in this sense that it is used in the phrase 'municipal corporation'. A corporation is not municipal unless it is organised for the Government of a single city, town, or village or other compact community or persons. A municipal corporation has been held to be a 'person' within the meaning of that term as used in statutes. Statutes very frequently specifically include political sub-divisions within the meaning of persons'. (Pages 73 & 74).

Jokley in his Municipal Corporations (Vol. I at page 10) defines the same as hereunder:

'A well approved definition is that municipal corporations are bodies politic and corporate, established by law to share in the civil Government of the country but chiefly to regulate and administer the local or internal affairs of a city, town or district which is incorporated'.

Encyclopaedia of Social Sciences (Vols. XI-XII at page 86) defines the same as hereunder :

'A municipal corporation is a body politic, created by the incorporation of the people of a prescribed locality and invested with subordinate powers of legislation, for the purpose of assisting in the civil government of the State and of regulating and administering its local and internal affairs.'

Duraiswami Aiyangar in the Law Municipal Corporations in British India (Second Edition at page 6) defines the same as hereunder:

'A Municipal Corporation is a legal institution formed by charter from sovereign power erecting a populous community of prescribed area into a body politic and corporate with corporate name and continuous succession and for the purpose and with the authority of subordinate self-government and improvement and local administration of affairs of State.'

29. From the above definitions as also the definition of the term 'Local Authority' in the Karnataka General Clauses Act of 1899, the Corporation is a 'local authority' or a local self-government created for the administration of the Municipal affairs of the City of Bangalore. As local authority, the Corporation will undoubtedly fall within the meaning of the term 'State' occurring in Art, 12 of the Constn. and administers the Act or a public law for the City of Bangalore. Hence, its actions are reviewable by this Court under Art. 226 of the Constn. Learned counsel for the respondents did not rightly dispute this legal position. I, therefore. answer point No. 2 in the affirmative.

RE: POINT NO. (III)

30. Sri. Byra Reddy urged that the grant and issue of licence to respondent No. 3 without a physical verification of the occupation of the tenements by a tenant and its adverse effect, if any, on such person, if not notifying him and considering his objections thereto, is not in conformity with the provisions of the Act and is illegal,

31. Sri. Krishna Murthy urged that the Corporation is under no obligation to examine and consider the interests of an occupant in whatever legal character be may be in occupation of the same and the licence issued to respondent No. 3 is in conformity with the Act and legal.

32. Before examining the relevant provisions that have a bearing on this and the following two points, it is useful to bear in mind some of the rules of construction applicable to the exercise of powers conferred on a Municipal Corporation, established by an act of the legislature.

33. A passage in the Law Municipal Corporations in British India by P. Durai Swami Aiyangar (Second Edition at pp. 26 and 27) neatly summarises the principles in these words:-

'A Municipal Corporation being a public institution for self-government and improvement and local administration of the affairs of State, its powers and functions embody its life as a social and political organism, power expressing legal authority to do an act and function the duty of the Municipality. A Municipal Corporation possesses such powers and such only as the statute creating it confers upon it, the statute being 'the measures of its powers'. As observed by Lord Halsbury (see Laws of England, Vol. 8 p. 359) where a corporation is created by statute, its powers are limited and circumscribed by the statute creating it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation. The American law is also to the same effect. 'It is well settled that a Municipal Corporation has only such powers as are clearly and unmistakably granted to it by its charter or by other Acts of the legislature, and consequently can exercise no powers not expressly granted to it, except those which are necessarily implied or incident to the powers expressly granted to those which are indispensable to the declared objects and purposes of the corporation. Any fair and reasonable doubt concerning the existence of the power, or any ambiguity in the statute upon which the assertion of the power rests, is to be resolved against the Corporation and the power denied.'

Crawford in his Statutory Construction also states the same principle (at pp. 478 and 479) in these words:

'Legislative Grants:-Legislative grants - whether they be of property, rights or privileges, or to municipal or private corporations, or individuals - must be strictly construed against the grantee and in favour of the grantor - the government or the public, where there is any doubt, it must be resolved in favour of the public. Nothing, therefore, will pass by virtue of the grant except what is given in clear and explicit terms'.

34. Another principle is that building regulations are made to regulate sanitation, structural safety and aesthetics of the area and the City as a whole. The building regulations do not generally interfere with the common law rights of owners to enjoy their property as they think best. Bearing these general principles, it is necessary to examine the provisions of the Act.

35. Chapter XV of the Act deals with the regulation of buildings. S. 295 of the Act empowers Corporation to make byelaws with the approval of Government for the matters enumerated in that section. Bye-law No. 38 framed by the Corporation with the approval of the Government under the corresponding S. 240 of the 1949 Act, has continued to be in force even after the repeal of the said Act and its replacement by the Act (vide first proviso to sub-section (1) of S. 507 of the Act.)

36. Section 299 of the Act provides that when a person intends to construct or reconstruct a building he should make an application to the Commissioner in writing for a licence or permission to construct or reconstruct his building. Section 299 requires the applicant to produce along with his application a site plan of the land, ground plan, elevations and sections of the building and such other particulars and documents prescribed by the rules or byelaws. S. 300 prohibits the owner to undertake the construction or reconstruction of a building without a licence or permission granted by the Commissioner. Section 301 deals with the period within which the Commissioner has to grant or refuse to grant an application made under S. 299 of the Act. S. 302 deals with the rights of an applicant, if there is delay on the part of the Commissioner in the disposal of the application made by him. S. 303 empowers the Commissioner to refuse an application made under S. 299 on the grounds enumerated in Cls. (a) to (g) of sub-section (1) of that section. The other provisions in the same chapter dealing with various other matters are not material and, therefore, they are not noticed and considered.

37. The provisions of the Act regulating the grant and issue of licences to an owner either for construction or reconstruction do not empower or provide for issue of notices, consideration of objections or even physical verification of persons that are in occupation of a building in whatever legal character such person is in occupation of the same. Bye-law No. 38 providing for various details in the filing of an application, documents, licence fee and other matters, doer, not provide for a notice, consideration of objections, physical verification of an occupant and the adverse effects if any, on such occupant before granting or refusing a licence. On the language of the Act, the claim of the petitioner that he was bound to be notified, his objections considered or his occupation should have been examined before issuing the licence is totally unfounded. But, this conclusion does not necessarily mean that the tenant or the occupant has no right to establish his rights against any action that may be taken by an owner for demolition, eviction and other matters either before an ordinary civil Court or before a rent control Court that is competent to deal with such a matter. As pointed out by Sabhahit, J. in Huligappa v. Rajashekhar, (1981) 1 Kant LJ 270, it is undoubtedly open to the tenant to resist an application made by a landlord for his eviction and thus safeguard his occupation of the tenant or the building as the case may be.

38. On the above discussion, it follows that there is no merit in the contention urged for the petitioner. I, therefore, answer point No. 3, in the negative and against the petitioner.

Re: Point No. (IV),

39. Sri Byra Reddy urged that the orders made by the Commissioner on 20-1-81 and 6-2-81 restraining respondent No, 3 from demolishing tenant No. 82, were valid and legal orders and there was no justification for him to make a volte face, file an affidavit and a memo in Writ Appeal No. 344 of 1981 stating that they were invalid orders and would not be enforced, from which this Court can conclude, that the licence had been granted without application of mind or on misrepresentation of facts made by respondent No. 3, and hold that the licence suffers from legal mala fides, In support of his contention Sri Byra Reddy relied on the rulings of the Calcutta High Court in Purusottanx Lalji v. Ratan Lal Agarwalla, : AIR1972Cal459 (FB) and Mrityunjoy Sadhukhan v. Dy. Commr. (B. & P.) Corpn. of Calcutta (AIR 1976 Cal 354).

40. Sri. Krishnamurthy urged that the orders dt. 20-1-1981 and 6-2-1981 were invalid orders and the Commissioner did not rightly seek to justify them and that in any event the said circumstance did not vitiate the licence granted to respondent No. 3.

41. A building licence dt, 27-5-1979 for re-construction of the building was issued to respondent No. 3, by the Commissioner without examining the el2ims of the petitioner, the orders dt. 20-1-1981 and 6-2-1981 were made by him and thereafter an affidavit and a memo were filed before this Court not to enforce the said orders are not and cannot be also disputed.

42. The act or any other principle or law did not prohibit the Commissioner from realizing the mistake committed by him and, making a statement before this Court in- appeal to, the effect that the order made by him was wrong and, therefore, he did not propose to enforce the same against respondent No.3 Without any doubt those developments took place after the grant and issued licence to respondent No. 3. After all the validity of a licence issued on an earlier occasion, cannot be judged by the various new circumstances that developed and the proceedings that took place between the parties or the Commissioner and respondent No. 3. A later invalid order does not make an earlier independent order per se invalid. The validity of a licence, cannot be examined with reference to subsequent developments and various orders made thereto. On this short' ground itself, the contention of the petitioner that the licence issued to respondent No. 3, is vitiated by legal mala fides is liable to be rejected.

43. Earlier while dealing with point No. (III) I have held that there was no legal duty cast on the Commissioner to examine the rights or claims of the petitioner against respondent No. 3. When that is so, it is difficult to conceive as to how an illegal order made by the Commissioner to protect the interests of the petitioner virtually to overcome what had been found against him by a competent civil Court, can be urged as a ground for holding that the licence issued to respondent No. 3, is vitiated by legal mala fides. In this view also, there is no merit in the contention urged for the petitioner,

44. An examination of File No. LPI ENE/845/79-80 of the Corporation relating to the issue of licence to respondent No. 3, shows that the various officers including technical officers of the Engineering department of the Corporation, examined the application for licence with due regard to the requirements of the Act and bye-law No. 38 and all of them recommended for the sanction of the licence and that the same was sanctioned on 22-6-1981 by the then Commissioner Sri J. Alexander. The said sanction made by the then Commissioner, does not suffer from any illegality or impropriety. What, happened after the issue of that licence, or the developments or the various orders by a new Commissioner, cannot be 'taken into consideration in judging the validity of the earlier order made by the then Commissioner to issue a. licence to respondent No. 3.

45. On the foregoing discussion, it follows that the licence granted to respondent No. 3, does not suffer from any legal mala fides. I, therefore, answer point No. 4 in the negative and against the petitioner.

Re: Point No. (V)

46. Sri Byra Reddy urged that demolition of tenement No. 82 by respondent No. 3, an act of vandalism and lawlessness was only to compel the petitioner and his family to vacate the premises and that can be prevented by the Commissioner under Sections 308, 309 and 321 of the Act. In support of his contention Sri Byra Reddy strongly relied on the ruling of the Supreme Court in Municipal Corporation of Greater Bombay v. Lala Pancham, : [1965]1SCR542 .

47. Sri Krishnamurthy urged that in common law an owner of a building had an absolute right to demolish his building and the same cannot be controlled, regulated or supervised by the Commissioner. In support of his contention Sri Krishnamurthy strongly relied on the ruling of this Court in Huligappa's case (1981-1 Kant LJ 270).

48. As seen earlier, the Commissioner himself has in effect withdrawn his orders dt. 20-1-1981 and 6-2-1981 and those orders are no longer in force. In examining Points (III) and (IV), I have found that that action of the Commissioner was legal and valid. As at present there is no legally enforceable order made by the Commissioner restraining respondent No. 3 not to demolish any part of his building, much less tenement No. 82 on which the entire controversy rests. When that is so, the contention of the petitioner that this Court should examine, as if there is an order prohibiting the demolition by respondent No. 3, is wholly misconceived and does not at all arise. On this short ground, the contention of the petitioner is liable to be rejected.

49. As soon as respondent No. 3 started demolition, the petitioner and his son approached the civil Court and have failed in their attempt to secure a temporary injunction restraining him from demolishing the same. When the petitioner and his son have failed to obtain a temporary injunction in their civil suits. they cannot be permitted to seek that very relief either before the Corporation or before this Court in this petition. On this ground also, the contention of the petitioner is liable to be rejected.

50. But, I will also assume that the matter has not been examined by a civil court and there is an order made by the Commissioner restraining respondent No. 3, from demolishing the building and examine whether the same falls within the scope of Ss. 308, 309 and 321 of the Act.

51. Section 308 of the Act empowers the Commissioner to direct a person who is constructing a house contrary to the terms of a licence to make alterations in accordance with the terms and conditions of the licence. S. 308 does not empower the Commissioner to prevent the demolition of a building by its owner.

52. Section 309 of the Act empowers, the Commissioner at any time to stop the construction or re-construction of a building, if he is satisfied that the work in progress endangers human life. A demolition of a building or part of a building may be necessary for construction or re-construction of a building. But. the demolition of such building will not fall within the meaning of the terms 'construction or re-construction of a building'. Assuming for purposes of argument that demolition falls within the meaning of the terms 'construction or re-construction of a building', in such a case also, the Commissioner must be satisfied that the work in progress endangers human -life. Without that satisfaction, the Commissioner cannot exercise the powers conferred by S. 309 of the Act. But. in such a case also, the Commissioner cannot act as an arbiter of civil disputes between the landlord and his tenant. He cannot usurp the powers of a civil or a rent control Court. An examination of the orders dt. 20-1-1981 and 6-2-1981 disclose that the Commissioner had not exercised the power under S. 30 of the Act and had exercised them to decide the civil disputes between the landlord and tenant From this, it follows that the orders dt. 20-1-1981 and 6-2-1981, assuming they are in force, were not legal.

52.A. Section 321 of the Act, on which very strong reliance was placed by Sri Reddy, in terms, does not regulate the demolition of a building by its owner. The heading of a section cannot control the plain language of that section. S. 321 of the Act empowers the Commissioner to direct the demolition of a building or hut constructed in contravention of a building licence or without obtaining a building licence or in contravention of any other provisions of the Act and any lawful directions issued thereto. But, that section also has no application to a case at an act of demolition by an owner of a building as such Section 321 does not, therefore, confer power on the Commis9'mer to prevent the demolition of a building by an owner.

53. In Lala Pancham's case : [1965]1SCR542 on which very strong reliance was placed for the petitioner, the Supreme Court was examining the maintainability of a suit filed by a tenant against a clearance order made by the Municipal Corporation of Bombay under Ss. 354R, 3MRA and Schedule GG of the Bombay Municipal Corporation Act of 1888. In that context the Supreme Court examined the validity and the true scope and ambit of those provisions and held that a tenant both under the provisions of the Transfer of Property Act and the Bombay Rent Control Act had a right to object to the clearance order to be made under those provisions. S. 354R in clear and unambiguous terms empowered the Corporation to order the demolition of a building and the consequent acquisition of the area for the proper development of that area.

54. In Huligappa's case (1981-1 Kant LJ 2701, Sabhahit, J. while examining somewhat a similar contention urged by the petitioner with reference to a building licence issued under the Karnataka Municipalities Act of 1964 has held that the ratio in Lala Pancham'9 case had no application and that it was open to a tenant to resist his eviction under the Rent Control Act. In my view, the dicta laid down by Sabhahit, J. in Huligappa7s case is equally applicable to the present case and is binding on me, Apart from this, the language of the Bombay Act in express terms authorized the Commissioner to demolish a building covered by a clearance order. Secondly, a clearance order made under the Bombay Act is nothing but acquisition, in which case it is undoubtedly open to the acquiring authority to demolish a building if it so decides. Lastly, we do not find similar provisions in the Act. For these reasons also, the principles enunciated in Lala Pancham's case has no application to the question.

55. Sri Byra Reddy urged. that demolition is nothing but an act of vandalism and is destructive of an orderly society and rule of law in the Country and to sustain this submission, he strongly relied on the meaning of the term 'rule of law' given by the Oxford Companion to Law found at page 103 and a passage at Page 24 of 'the Idea of' Law' by Dennis Lloyd.

56. Earlier, I have held that the demolition of a building is not regulated by the Act. Sri Byra Reddy has not been able to point out any provision in the Constn. or any other provision in any law made by the Parliament or by the State regulating the same. When the matter is not regulated by the Constn. or any public or statute law, necessarily the matter is only regulated by common law.

57. A precise definition of common law is neither possible nor necessary for this case. But, common law is as much part of our legal system or 'rule of law' At common law, an owner of a building has an absolute right to demolish his building. Whether he will be so excentric and foolish to do so, does not really touch on his right to demolish his building. What rights an occupant or other neighbour may have to prevent such an action. if that action results in an injury or wrong to either of them, does not touch on the right of the owner to demolish the building. On this conclusion also the Corporation could not have prevented respondent No. 3, from demolishing any portion of the building. A fortiori this Court also cannot prevent respondent No. 3 from demolishing his building. In my view, the definition of 'rule of law' or the passage at Page 24 in the idea of Law is not inconsistent with the above conclusion.

58. On the above discussion, I hold that there is no merit in the contention urged by Sri Byra Reddy. 1, therefore, answer point No. (V) in the negative and against the petitioner.

Re: point No. (VI).

59. While narrating the facts, I have pointed out the various attempts made by the petitioner and his son to prevent the demolition and re-construction of the building for which respondent No. 3, had obtained a licence. When the petitioner's son did not secure an injunction, the petitioner filed 0. S. No. 10358 of 1980 and obtained an order of injunction. Immediately after the disposal of M. F. A. No. 36 of 1981 filed by him, by this Court, Jawaharalal filed another suit and obtained a temporary injunction. But, before that, the petitioner and his son moved Government and the Corporation and obtained an order in their favour. After all those proceedings had terminated in favour of respondent No. 3, the petitioner has filed this writ petition and obtained an order of injunction. The petitioner was aware of the licence issued to respondent No. 3 at least on 2-12-1980 on which day he instituted 0. S. No. 10358 of 1980. When the petitioner failed to secure necessary relief in that suit, he attempted to overcome the same and moved the Government and the Corporation to come to his succour, which unfortunately was granted in the first instance though the same was withdrawn or was not sought to be enforced at a later stage. The petitioner having initiated other legal proceedings and failed in them, cannot turn round and challenge the very licence at a very late stage and thus overcome the decision rendered by the Civil Court and this Court in another jurisdiction. In my view the conduct of the petitioner is such that this is a fit case in which this Court should decline to exercise its extraordinary jurisdiction in favour of the petitioner, even if there is any merit in any of the contentions urged by him. I, therefore, answer point No. (VI) in the affirmative and against the petitioner.

60. On the foregoing discussion and the answers recorded on Points Nos. (1) to (VI), it follows that there is no merit in any of the contentions urged for the petitioner and this writ petition is liable to be dismissed. I, therefore, dismiss this writ petition and discharge the rule issued with costs of respondent No, 3. Advocate's fee Rs. 250/-

61. Petition dismissed.


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