VELJI LAKSHMI & CO. ETC v. BENEIT COLEMAN & CO. ETC

On M/s Velji Lakhamsi & Co.'s failure to comply with respon dent No. l's aforesaid notices calling upon it to vacate the premises, the latter brought a suit in the Court of Small Causes, Bombay 18th April, 1960 for eviction of the former on the ground that premises were required under section 13(1) (hhh) of the Bombay R!onts (Hotel and Lodging Houses Rates) Control Act, 1947 (herein after referred to as 'the Bombay Rents Control Act, 194 7') for the immediate purpose of demolition ordered by the Local Authority i.e. the Town Planning Authorities and the Bombay Municipal Corpora tion or other competent authority. Although it was also averred by respondent No. 1 in the plaint that it required the premises reasonably and bonafide for its own use and occupation, it abandoned this plea The said respondent also sought a decree against M/s later on. Velji Lakhamsi & Co. for Rs. 2,500/- on account of arrears of rent for the month of March, 1960 as also for future mesne profits and costs. Mis Jamnadas Bhimji & Co. being in possession through M/s Velji Lakhamsi & Co. of a part of the premises as a sub-tenant, it was also impleaded by respondent No. 1 as a defendant to the, suit. F G H A B c D E F G H 612 SUPREME COURT REPORTS [1977] 3 S.C.R. The suit was contested by the appellants inter alia on the grounds that respondent No. l's aforesaid notices to quit were not valid; that they were not bound by any undertaking given by respondent No. 1 to the Municipal Corporation; that the aforesaid notice (Exh. 'B') !given by the Municipal Corporation to respondent No. l did not sub sist in view of the fact that the aforesaid scheme having been kept in abeyance, the Corporation did not propose to take immediate action in pursuance of the notice; that nothing was outstanding against M/s Velji Lakhamsi & Co. by way of arrears of rent and that Rs. 2,500/ p.m. claimed by respondent No. 1 was far in excess of the standard rent. On the pleadings of the parties, the trial court framed following issues : - "!. Is' the tenancy of defendant No. 1 not properly termi- nated ? ·

#2. Do plaintiffs prnve that the premises are required for the immediate purpose of demolition ordered by the local authorities i.e. the Town Planning Authorities and the Municipality or other competent authorities ?

#3. To what decree, if any, are the plaintiffs entitled ?" On a consideration of the evidence adduced in the case, the trial court by its judgment dated 12th September, 1963 negatived con.tentions raised by the appellants and decreed the suit and ordered the appellants to deliver possession of the suit premises to respondent No. l by 11th September,. 1964, holding !hat the tenancy of M/s Velji Lakhamsi & Co. had been validly terminated; that respondent No. 1 having been served with a notice of demolition by the local autho rity, it had fulfilled the requisite of the requirement of the premises for the immediate purpose of demolition as contemplated by section 13(1) (hhh) of the Bombay Rents Control Act, 1947; that while clause (hh) of section 13(1) of the Act relates to landlord's intention to demolish the building of his own volition and to erect a new building, its succeeding clause (hbh) relates to forcible demolition ordered by the local authority or by a competent authority whose powers an~ not hampered in any way by the provis; ons of the Rent Act; that if the local authority issued a notice that the premises are required for the purpose of d•emolition, it would not then be open either to the land lord or the tenant, whosoever may be in possession, to question. authority trying to seek .. protection under the pro\<isions of the Rent Act, and whenever such a notice was issued, the purpose would have to be taken to be immediate in spite of the fact that the actual imple mentation of the Scheme may take some time. The Court further held that as the Scheme had been sanctioned, the Commissioner who gave the notice (Exh 'B') should be deemed to have given it a competent authority under the Municipal Act. Aggrieved by this decision, the appellants in both the appeals pre .. ferred separate appeals to the appellate Bench of the Court of Small Causes at Bombay which were allowed by a common Judgment dated 10th December, 1968 with the observations that the conditions which (Exh. 'A') the Commissioner laid down in the written permission B A 613 final C VELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. (!aswant Singh, !.) granted under section 3 of the Bombay Act, 1944 (made by the Go- vemor under the proclamation dated 4th November, 1939) were not analogous to statutory mies and regulations or bye-laws; that the said Act which was of temporary character having lapsed on 3rd April, 1948, the commissioner ceased to have statutory authority to call upon respondent No. 1 to demolish the suit premises and thus to enforce the conditions mentioned in Exhibit 'A' which also lapsed on the expiry of the Act and as the notice (Exh. 'B') by the Municipal Commissioner to respondent No. 1 was not under any statutory power exercisable by him but was given nnder the contract between him and respondent No. 1, it could not be called an order within the meaning of section 13(1) (hhh) of the Bombay Rents Control Act, 1947 and form the basis of a suit for eviction of the appellants from the snit premises. The appellate Bench, however, held that there was no substance in the argument advanced on behalf of the appellants that the scheme having been kept in abeyance, the requirement of respondent No. 1 could not be called an immediate purpose of demolition re- ordered by the local authority. The appellate Bench further marked that if the notice (Exh. 'B') could be construed as an order under section 13(1) (hhh) of the Bombay Rents Control Act, 1947, the purpose for which respondent No. 1 called upon Mis Velji Lakhamsi & Co. to vacate the premises would be for the immediate D purpose of demolition as ordered by the local authority Respondent No. 1 thereupon took the matter to the High Court of Judicature at Bombay by means of the aforesaid petitions Nos. 1686 and 1687 of 1969 under Article 227 of the Constitution. By its judgment dated 20th March, 1972, the High Court granted the petitions and set aside the judgment and decree passed by the appellate Bench of the Court of Small Causes and restored there of the trial Court holding that the notice (Exh. 'B') given by the Municipal Commissioner on 19th Sep tember, 1958, was clearly an order of demolition by the competent authority; that if the Commissioner granted any ~rmission to build some work subject to certain conditions which he conld have imposed during the period in which the restrictions imposed by section 3 of the Bombay Act, 1944 were in force, it could not be legitimately con- tended that the person who contravened the conditions by which he was bound could not be dealt with under sections 5 and 6 of the Act; that the mere fact that respondent no. 1 had agreed to the e-0nditions specified in Exhibit 'A' did not in any way affect the legal consequ ences of the permission or the legal nature of the power exercised by the Commissioner under section 3 of the Act and that as long as structures built under that ~rmission stood, the Commissioner could have called upon respondent No. 1 to remove the same; that the Com- missioner was within his powers t6 issue the notice (Exh. 'B') dated 19th September, 1958, and that the trial Court was right in its view that the said notice was an order within the meaning of section 13 (I) (hhh) of the Bombay Rents Control Act, 1947. With regard the appellants' plea that the notice (Exh. 'B') had lost its efficacy as the town planning scheme had been held in abeyance, the High Court observed : - F E G H "It may be that the town planning scheme is in abeyance for the very fact that persons like Mr. Bhatt's clients • A B c D E F G H 614 SUPREME COURT REPORTS (1977) 3 S.C.R. It obstructing eviation proceedings filed by the landlords. may be that there are very many other reasons for its abey ance. The question that the Court must consider under sec tion 13(1)(hhh) is as to whether the landlord is entitled to recover possession as the premises are required for the imme.- ·diate purpose of demolition. It may be that some land lords would like to postpone the removal of the structure. But where a landlord bound by the notice, wants to comply with the notice issued to him by the Municipal Commissioner without delaying further in the matter and perhaps is eager to co-operate with authorities in enforcing the town planning scheme, it cannot be said that he does not require. the pre mises for the purpose of demolition". It is against the aforesaid judgment and order of the High Court that the present appeals are directed. Appearing in support of the appeals, Mr Patel and Mr. Bhatt, learned counsel for appellant in C. A. No. 915 of 1972 and C. A. No. 916 of 1972 respectively have reiterated almost all the contentions raised on behalf of their clients before the courts below regarding the validity and efficacy of the notice (Exh. 'B'). They have strenously urged that the ground specified in clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act, 1947, on which the suit out of which the present appeals have arisen was based could nO!I: be called in aid by respondent No. 1 as the elements of that clauoo learned were not at all satisfied. counsel have canvassed the following points : - Elaborating their contention, the ( 1) That the Bombay Act, 1944, being a temporary statute, not governed by the rule enunciated in sec tion 7 of the Bombay General Clauses Act, having automatically disappeared or fapsed on. the expiry of two years commencing from 3rd April, 1946 on which the aforesaid proclamation dated 4th Novem ber, 1939 made under section 93(1) of the Govern ment of India Act, 1935 ceased to have effect, the Commissioner was not competent to issue the notice (Exh. 'B') or take any step to enforce the conditions imposed by him under section 3 of the Act while granting written permission (Exh. 'A') to construct the premises in question. They have, in snpport of their submission, invited our attention to the decisions of this Court in S. Krishnan and Ors. v. The SYite of Madras (1951 S.C.R. 621), The State of Uttar Pradesh v. Seth Jagamander Das and Ors. (A.I.R. 1954 S.C. 683) and Gopi Chand v. The Delhi Administration (1959) Supp 2 S.C.R. 87. (2) That the Municipal Commissioner, Bombay, having oeased to have a statutory existence on the expiry of VELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. (Jaswant Singh, J.) 615 the Bombay Act, 1944, nullity. the nottce, Exh. ('B') was a A (3) That assuming without admitting, that the Municipal Commissioner did not become non est on the lapse of the Bombay Act, 1944 even then the notice is in- valid and ineffective as s•ection 489 of the Bombay Municipal Corporation Act, 1883 under which purports to have been issued envisages the issue of a notice only for giving effect to the requisition of order made under the. sections, sub-sections and clauses of the Act specified therein. ( 4) That no statutory rule or bye-law having been made under the Bombay Act, 1944 and the notice (Exh. ·'B') which was based upon the agreement contained in Exhibit 'A' between the Municipal Commissioner, Bombay, and respondent No. 1 and not on any statu tory power exercisable by the Commissioner, did not constitute an order as contemplated by clause (hhh) of sub-section ( 1) of section 13 of the Bombay Rents Control Act, 1947. ( 5) That assuming without admitting that the notice (Exh. 'B') amounted to an order, still clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act, 194 7 requires the Court to be satisfied before passing a decree for eviction of a tenant tha,t the premises are required for the immediate purpose of demolition ordered by any local authority or other The words "satisfied" and competent authority. "immediate purpose of demolition" occurring in the section are very strong words. They denote that the urgency should be such as to leave no room for doubt that it can brook no delay. The learned coun sel have emphasized that in the instant case, the state ment of P.W. Chitaman Krishnaji Limaya, the Sub Engineer, Bombay Municipal Corporation, to effect that the general policy of the Corporation is not to expedite the demolition unless some alternative accommodation is made for the inmates of the plots where the constructions are to be demolished une quivocally shows that the premises in question are not really required for the immediate purpose of demoli- tion. · ( 6) That the final scheme having been suspended varied, there was no subsisting order and the require ment of the premises by the respondent No. 1 could not be said to be for the immediate purpose of demoli- tion ordered by the local authority so as to permit the invocation of clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act, 1947. B c D E F G H ( , A B c D E F G H 616 SUPREME COURT REPORTS [1977] 3 S.C.R. (7) That the notice. (Exb. 'B') is ineffective as under the Town Planning Act of 1915 or of 1956 or of 1966, it is local authority and not the landlord who has the power to evict the tenant. Mr. Nariman, learned counsel for respondent No. 1 has stoutly combated and countered all the points raised on behalf of the. appel lants. He has referred us to various provisions of the City of Bom bay Municipal Act, 1888, the Bombay Act, 1944, the Bombay Town Planning Acts, 1915, 1954 and 1966, the Bombay Rents Control Act, 1947 and a number of authoritative pronouncements which would be ·adverted to at appropriate places to show that the Bombay Act, 1944 is supplemental to the Bombay Municipal Act, 1888; that the rights acqufoed and liabilities incurred by virtue of Exhibit 'A' granted under the Bombay Act, 1944 were. of abiding nature aud did not lapse with the expiry of the said Act; that the Municipal Connnissiouer survived the lapse of the Bombay Act, 1944 and hacl plenary powers to enforce the conditions subject to which permission (Exh. 'A') was granted and that the notice (Exh. 'B') which had its genesis in the statutory pro visions is perfectly valid and effective and constitutes an order within the meaning of clause (hhh) of sub-section (1) of section 13 of the Bombay Rents Control Act. 1947. We shaH deal with the points raised on behalf of the appellants in the order in which they have been raised. Re : Point No. 1 :-This pivotal point canvassed by learned counsel for the appellants though it looks attractive at first sight can It is true that the offences committed not stand a close scrutiny. against a temporary statute have, as a general rule, to be prosecuted and punished before the statute expires and in the absence of a special provision to the contrary, the criminal proceedings which are being taken against a person under the temporary statute ·will ipso facto terminate as soon as the statute expires. But the analogy of criminal proceedings or physical constraints cannot, in our opinion, be extended to rights and liabilities of the kind with which we are concerned here for it is equally well settled that transactions which are concluded and completed under the temporary statute while the same was in force often endure and continue in being despite the expiry of the statute and so do t11e rights or obligations acquired or incurred therennder de pending upon the provisions of the statute and nature and character of the rights and liabilities. The following observations at pages 409- 410 in Craies on Statute Law (Seventh Edition) are worth quoting in this connection : - - "The difference between the effect of the expiration of a temporary Act and the repeal of a perpetual Act is pointed out by Parke B. in Steavenson v. O/.iver (1841) 8 M. & W. 234, 240, 241. There is a difference between temporary statutes and statutes which are repealed; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed, but with respect VELJI LAKSHMI & CO. V. ·BENETT COLEMAN & CO. (Jaswant Singh, !.) t0 the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction". 617 It will a.Jso be advantageous in this connection to refer to Para 720 (Third at page 475, Volume 36 of Halsbury's Laws of England Edition) : - ' "720. Effect of expiry a matter of construction. The effect of the expiry of a temporary statute is in each case a matter of construction. There is no presumption that a statute is to be treated on expiry as dead for all purposes." A B We are also fortified in our view by the decision of this Court iu State of Orissa v. Bhupendra Kumar Bose (1962] 2 Supp. S.C.R. 380, where while dealing with the question whether the rights created by Orissa Ordinance No. 1 of 1959 promulgated by the Governor valida- C ting the election to the Cuttack Municipality (which had earlier been declared to be invalid by the High Court) and curing the invalidity of the electoral rolls in respect of other Municipalities were of lasting character and endured after the expiry of the ordinance, Gajendra gadkar, J. (as he then was) speaking for the Court observed: • "In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a tem inflexible and porary Act on which Mr. Chetty relies It is true for instance that offences admits of no exceptions. committed against temporary Acts must be prosecuted and If a prosecution has not punished before the Act expires. ended before that day, as a result of the termination of the Act, it will ipso facto terminate. But is that an inflexible and universal rule'? In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right and obligation resulting from the pro- their character visions of the temporary Act and upon whether the said right and liability are enduring or not.." .. In considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring charac ter and has vested in the person, that right cannot be taken away because the statute by whic)l it was created has expir- ed. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to the matter ........ In our be the true legal position the Ordinance opinion having regard and to the dghts created by the validating provisions, would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Stea venson and they must be held to endure and last even after the expiry of the Ordinance. The OrdinancB has in terms the object of D E , F G H A B c D E F G H 618 SUPREME COURT REPORTS [1977] 3 S.C.R. provided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires". (underlining is ours). related (supra) c 133, to 6th Geo. 4, In arriving at his conclusion, the learned Judge relied on Steaven son v. Oliver (151 E.R. 1024, 1026-1027 and Warren v. Windle (180:i) 3 East 205, 211-212 : 102 E.R. (K.B.) 578. Steavanson section v. Oliver 4 whereof provided that every person who held a commission or warrant as surgeon or assistant surgeon in His Majesty's Navy or Army, should be entitled to practise as an apothecary without having passed the usual examination. The statute was temporary and it ex It was urged in that case that a person pired on 1st August, 1826. who was entitled to practise as an apothecary under the Act would lose his right after 1st August, 1826, because there was no saving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it. The Court rejected this contention and held that the person who had acquired a right to practise as an apothe cary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right In dealing with the question about the effect of the after its expiration. expiration of the temporary statute, the learned Judges composing the Bench observed : "Lord Abinger, C. B.-We are of opinion that the repli cation is good, and there must therefore be judgment for the It is by no means a consequence of an act of plaintiff. Parliament's expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an act of Parl~ament, would not a person who had been guilty of the offence upon which the legislature had penalty while the act was in force, be liable to pay it after its expiration. The case of ·a right acquired under the act ls stronger. The 6 Geo. 4, c. 133, provides, that parties who hold such warrants shall be entitled to practise as apotheca ries; and we cannot engraft on the statute a new qualification, limiting that enactment. imposed Parke, B.-Then comes the question whether the privi lege of practising given by the stat. 6 Geo. 4, referred to in the replication is one which continues notwithstanding the expi ration of that statute. That depends on the construction of the temporary enactment. There is a difference betwee.R temporary statutes and statutes which are repealed, the latter (except so far as they relate to transactions already complet ed under them) become as if they had never existed; but • ., 619 VELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. (Jaswant Singh, J.) with res~t to the former, the extent of the restrictions imposed, and the duration of I.he provisions . are matters of construction. We must therefore look at this act, and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege. It seems to me that the meaning of the legis lature was, that all assistant surgeons,, who were such before the !st of August, 1826, should be entitled to the same pri vileges of practising as apothecaries, as if they had been in actual practice as such on the 1st of August, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after the I st of August, 1826. Also that part of the section relating to the proof by the pro duction of a certificate, although the language of the legis lature became perfectly illusory, inasmuch as it left the party to the same mode of proof as before, still the intention was, that no other proof should be required than the production of the certificate; although by using the words, "that the proof should be by the production of a certificate under the seal of the corporate body, "the mode of proof was left as it was before. With respect to the vested interests of those persons who held warrants as assistant-surgeons in the navy or army, the intention was, that all who were such, either at the time of the passing of the act, or at any time before the I st of August, 1826, should be in the same position, with respect to their right to practise as apothecaries, as if they had been in actua1 practice as such before the !st of .August, 1815. I am the more disposed to think thus, on the ground that the penalties given by this act Would probably survive its expira tion, and that persons who violated its provisions might after wards be punished in the way pointed out. If it were not so, any person who had violated those provisions within months prior to the expiration of the act, would not be liable to punishment at all. It is, however, necessary to decide that point; it is enough to say that we think those who were qualified by being assistant-surgeons in the navy before the 1st of August, 1826 retained that qualification not withstand ing the expiration of the statute. A B c D E F · Alderson, B.-I am of the same opinion. With respect !O the difference between the 5th and !st of August, suppos mg the latter to be the correct date, still the objection would not be good, for. the alteration effected in this respect by 6th qeo, 4, c. 133, 1s one of a pe~anent nature, and the objec tion could only be rendered valid by holding that statute as one in all respects of a temporary character. But I apprehend that, on the true construction of these acts of Parliament those parts of the 6th Geo. 4, which explain the provision~ of the 55 G~. 3 are. in their own nature permanent and effectual, notw1thstandmg the final clause, which makes the act temporary. Independently, however, of this considera tion, I agree in the opinion already expressed by any Brother Parke. , G H 620 SUPREME COURT RE~ORTS (1977] 3 _s.c.R. A B c D E F G H Rolfe, B.-The only important question in this case is the last. The 6 Geo. 4, when it says that the act shall conti nue in force till the 1st of August next, does not mean that what is therein enacted should be of no force after that day, if it were so, the act might be productive of the· greatest in justice. . . . ... I think that although in one sense this act is not in force, yet it is still permanent as to the rights acquir ed under it." In Warren v. Windle (supra where the statute, 26 Geo. 3, c. 108 professed to repeal the statute of 19 Geo. 2, c. 35 absoiutely though its own provisions, which it substituted in place of it, were to be only temporary, Lord Ellen borough, C.J. held that "a law though temporary in some of its provisions, may have a permanent operation in other respects". The foregoing discussion makes it abundantly clear that the ques tion as to whether the restrictions, rights and obligations flowing from the provisions of a temporary statute which come to an automatic end by effiux of time expire with the expiry of the statute or whether they endure and survive after the expiry of the statute depends upon the construction of the statute and the nature and character of the rights, restrictions and obligations and no rigid or inflexible rule can be laid down in this behalf. We must, therefore, scrutinise the provisions of the temporary statute in question viz. the Bombay Act, 1944 which has long since expired and the permit (Exh. 'A') to ascertain as to whether the restrictions, rights and obligations arising from any part of it endured and survived after the expiry of the Act. The Act, as evident from its preamble_ aud Statement of Objects and Reasons, was designed to prevent the growth of buildihgs in a hapha zard fashion which might conflict with the contemplated scheme of systematic town planning in the aforesaid area devastated by explo sions. Section 3 of the Act which related to the imposition of res trictions on building works in the said area including the plot in question authorised the Municipal Commissioner to impose such con ditions as he might think fit to specify while granting permission for construction of a building or a structure. In the instant case, the Municipal Commissioner gave permission to the respondents to build on the plot in question subject to the express condition th.at the stmctures would be pulled down by them whenever required to do so to give effect to any improvement scheme that might be made under the Bombay Building Town Planning Act. The rights and obliga tions flowing from the conditions subject to which 11ie permission to build was granted to respondent No. 1 were annexed to the owner ship of the building for all time to come and were not limited to the duration of the Bombay Act, 1944. Accordingly, we are satisfied that the provisions of sections 3 and 8 of the Bombay Act, 1944 were imposed, permanent as to the restrictions, rights and obligations acquired and incurred thereunder. A fortiori, the rights acquired by the Municipal Commissioner, Greater Bombay, by virtue of the ex press conditions imposed by him while granting the permit (Exh. 'A') were not subject to a time limit and did not lapse with the expiry of the Act. . ' .• VELJI LAKSHMI & CO. v. BENETT COLEMAN & CO. (Jaswant Singh, J.) 621 All the aforesaid three decisions cited by the learned counsel for~ A In the State of Uttar Pfa- the apellants are clearly distinguishable. desh v. Seth Jagamander Das (supra), this Conrt while upholding: the order of the High Court of Judicature at Allahabad quashing the proceedings taken against the respondent under section 120B, Indii~n Penal Code, read with Rnles 81 (4) and 121, of the Defence of India, Rules for the alleged violation of clause (2) of the Non-Ferrous Metals Control Order (1942) held that prosecution could not be B commenced for contravention of the Non-Ferrous Metals Control Order (1942) after the expiry of the Defence of India Act under which it had been made because that would amount to the enforcement of a dead Act. ' Gopi Chand v. The Delhi Administration (supra) was also a criminal case where this Court set aside the conviction and sentence of the appellant in three cases for offences ordinarily triable under the warrant case procedure but which were tried according to procedure prescribed for trial of summons cases by Chapter XX of the Code of Criminal Procedure. The conviction and sentence were quashed on the ground that the summons case procedure which had been adopted for trial of the appellant according to section 3 6 (I) of the East Punjab Public Safety Act, 1949 could not be continued after the expiry of the Act in the absence of a saving clause similar to section 6 of the General• Clauses Act. S. Krishnan & Ors. v. The State of Madras (supra) related to detention under the Preventive Detention (Amendment) Act of 1951 and is not germane to the point under consideration. 'T Consquently we have no hesitation in holding that there is no merit in the appellant's plea that Municipal Commissioner, Greater Bombay was not competent after the expiry of the Bombay Act, 1944 to issue the notice (Exh. 'B') to respondent No. 1 calling upon it to demolish the premises in question. Re. Point No. 2 :-This plea is also misconceived. The Bombay Act, 1944 was indisputably supplemental to the Bombay Municipal Act, 1888 as the latter Act has been clearly referred to in sections 2 and 6 of the former Act as "the Principal Act". Though the former Act was temporary, the Municipal Commissioner alluded to therein did not cease to exist with the expiry of the Act. Being a creature of the Bombay Municipal Corporation Act, 1888, and a functionary who is required to be appointed from time to time in terms of section 54 of the Act, his life did not de!lend upon the life of the Bombay Act, 1944. The submission made by the learned counsel for the apellants is, therefore, repelled. Re. Point No. 3 :-There is no substance in this point as well. A careful perusal of the notice (Exh. 'B') would show that though it failed to it held out a threat to that in case respondent No. 1 comply with the direction regarding the demolition of the entire structure in question, the Municipal Commissioner would cause the structure to be pulled down or removed under section 489 of c D E F G H 622 SUPREME COURT REPORTS [1977] 3 s.c.R. A Bombay Municipal Act, it was really issued under the Special Regu lation No. 36 which, as stated earlier, became a part and parcel of the Bombay Town Planning Act, 1954, by virtue of section 51(3) of the Act. The notice ex facie shows that it was being issued It expressly referred under the Bombay Town Planning Act, 1954. to the aforementioned scheme viz. the Town Planning Bomba)' City B No. 1 (Elphinstone Estate) Scheme, the sanction of the Scheme by . the Government of Bombay under section 51 of the Bombay Town Planning Act, 1954 (Act XXVII of 1955), the coming into operation of tile Scheme with effect from lst of December, 1957, the publication of the sanction of the Scheme in the Bombay Government Gazette and intimated to respondent No. 1 that the land upon which its prec mises in question stood was affected by the Scheme. We have, therefore, no doubt in our mind that the notice was issued under the Special Regulation No. 36. The fact that reference to section 489 of the Municipal Act, 1888 was erroneously or incorrectly made it1 the notice is immaterial as it is well settled that if the exercise of a power can be traced to a legitimate source, the fact that it was pur ported to have been exercised under a different power does not vitiate the exercise of the power in question. A reference in this connection may usefully be made to the decisions of this Court in Afzal Ullah v. The State of Uttar Pradesh('); J. K. Steel Ltd. v. Union of India( 2 ); N. B. Sanjana v. Elphinston Mill(') and H. L. Mehra v. Union of India(•). We feel tempted at this juncture to reproduce the following observation made by this Court in N. B. Sanjana v. Elphinston Mill (supra) : - c D E F G H "Dr. Syed Mohammad is, no doubt, well founded in bis contention that if the appellants have power to issue notice either under rule lOA or rule 9(2) (of the Central Excise Rules, 1944), the fact that the notice refers specifically to a particular rule, which may not be applicable, will not make the notice invalid on that ground as has been held by this Court in J. K. Steel Ltd. v. Union of India (supra). Testing the notice (Exh. 'B') from the point of view of the exis tence of the power of the Commissioner to issue it, we are convinced that be enjoyed the power in fu!J measure and the challenge to validity of the notice on the ground of lack of power in the Com missioner is wholly unjustified. is also devoid of Re. Point No. 4:-Tbis point substance. Though no statutory rule or bye-law appears to have been made under the Bombay Act, 1944, the Municipal Commissioner had plenary power under section 3 of the Act to authorise by means of a written permission the construction of any building or structure in the area described in the Schedule to the Act subject to such conditions, if any, as he might have thought fit to specify in the permission. The permission (Exh. 'A') having been granted subject to the express condition that the plaintiff shall pull down or. remove the temporary (!) [1964] 4 S.C.R. 991, 1000. (3) [1971] 3 S.C.R. 506, 515: (2) [1969] 2 S.C.R. 481, 505. (4) [1975] I S·C.R. 138, 149. VELJI LAKSHMI & CO. V. BENETT COLEMAN & CO. (Jaswant Singh, !.) 623 the ownership of structure in question whenever called upon to do so and the same hav- A ing been -annexed to and made to go with structure in respect whereof, it was granted by virtue of section 8 of the Bombay Act, 1944, it could be enforced by the Municieal Commissioner under Regulations Nos. 36 and 38 of the Special Regulations made by the Arbitrator which, as already stated, became a part and parcel of the Bombay Town Planning Act, 1954 by virtue of section 51(3) of the Act as also under section 55(1)(a) read B with Rule 28 made under section 87 of the Act. The Special Regulations Nos. 36 and 38 as well as section 55 of the Bombay Town Planning Act, 1954 and Rule 28 made under section 87 of the Act are reproduced below for facility of reference : - ,. "Regulation N'o. 36 :-All temporary structures within the boundaries of a final plot i.e. those which have been per mitted to be constructed by the Municipal Corporation under section 15 of the Bombay T.P. Act subject to a con- dition or under an agreement whereby such structures have to be removed by the owners concerned at their cosf when- ever called upon to do so by the Municipal Corporation, shall be so removed within a period of two years from the date the final scheme comes into force. Provided, however, that this limit may be extended by the Municipal Commissioner in cases where genuine hard ship may be caused to the owners concerned in complying with this regulation for reasons beyond their control and provided further that such an extension. shall not be grant ed save in exceptional cases. Regulation No. 38 :-Any person contravening any of the aforesaid regulations or any of the provisions of the scheme, shall, on being convicted for such contravention, be liable to fine which may extend to Rs. 1,000/- (One thou· sand) and in the case of continuing contravention of the aforesaid provisions, be shall be liable to an additional fine which may extend to Rs. 10/- (Ten) for each day during which such contravention continues after conviction for the first such contravention. Section 55 of the Bombay Town Planning Act, 1954- ( 1) On and after the day on which the final scheme comes into force the local authority may after giving the prescribed notice and in accordance with the provisions of the scheme- (a) remove, pull down, or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection or carrying out of which any provision of scheme has not been complied with; * (b) * (2)Any expenses incurred by the local anthority under this section may be recovered from the persons in default • • c D E F G H A B a D E F G H 624 SUPREME COURT REPORTS [1977] 3 §.C.R. or from the owner of the plot in the manner provided for the recovery of sums due to the local authority under the provisions of this Act. ( 3) If any question arises as to whether any building or work contravenes a town-planning scheme,. . . . . . . . it shall be referred to the State Government or any officer authorised by the State Government in this behalf and the decision of the State Government or of the officer, as the case may be, shall be final and. conclusive and binding on all persons. Rule 38 made under section 87 of the Bombay Town Plan ning Act, 1954-Before removing, pulling down or altering any building or other work or executing any work under sub section ( 1) of section 55, a local authority shall serve a notice on the owner or occupier of the building or work, as the case may be, calling upon him to remove, pull down or alter such building or work or execute such work within such reason able time as may be specified in the nqtice and intimating him the intention of the local authority to do so on failure to comply with the requirement of the notice." The conclusion is, therefore, inescapable that the direction in the notice (Exh. 'B') for demolition of the premises in question which clearly had its genesis in the aforesaid statutory provisions did consti tute an order within the meaning of clause (hhh) of sub-section ( 1) of section 13 of the Bombay Rents Control Act, 1947 and the appel lants' plea that no statutory rule or bye-law having been made under the Bombay Act, 1944 and the notice (Exh. 'B') not being based 01'1. any statutory power exercisable by the Commissioner did Mt constitute such an order is wholly untenable. Re : Point No. 5 :-In face of the findings of the Rent Courts i.e. Court of Small Causes, Bombay as also of the appellate Bench of that Court which are courts of special and exclusive jurisdiction that the permises in question are required for the immediate purpose demolition, we think it is not open to the appellants to raise the point before us. That apart what is sought to be urged before us cannot be sustained in view of the fact that the ground specified in clause ( hhh) of sub-section (1) of section l3 of the Bombay Rents Control Act, 194 7 does not stand on the same footing as the ground. specified its preceding clause viz. clause (hh). Whereas clause (hh) which appears to have been enacted with a view to provide better and more , housing accommodation in the interest of the public re_lates to a land lord's bonafide intention to demolish the building of his own volition and to erect a new building in its place, clause (hhh) which was insert ed by Bombay Act 61 of 1953 inter alia to prevent a landlord or a tenant from impeding the town improvement or town planning scheme which is presumed to be in public interest relates to compulsory demo lition ordered by a local or competent authority. It is because of this difference that the ground specified in clause (hhh) is not subject the conditions and restrictions embodied in sub-section (3A) of sec- VELJJ LAKSHMI & CO. V. BENETT COLEMAN & CO. (Jaswant Singh, !.) 625 tion 13 and sections 17 A, 17B and 17C of the Bombay Rents Control A ground It is sufficient to satisfy the requirement of the Act, 1947. specified in this clause that the order of demolition is issued by local or competent authority in exercise of the powers vested in it and the order discloses that in the opinion of the local or competent autho- rity, the premises are required for the immediate purpose of demolition. The statement of P.W. Chitaman Krishnaji Limaya, Sub-Engineer, B Bombay Municipal Corporation made nearly fourteen years ago to the effect that "the general policy of Corporation is not to expedite the demolition unless some alternative accommodation is made for inmates of the plots where the con~tructions are to be demolished" on which strong reliance is placed on behalf of the appellants has no re levance for our purpose as the instrnctions on which the statement was based related to the period between Ist July, 1962 and 31st December, 1962. We are, therefore, of opinion that there is no force in point No. 5. C Re : Point No. 6 :-This point needs consideration under heads viz. suspension of the Scheme and variation of the Scheme. Suspension of the Scheme : It is no doubt true that the request of the Corporation, the State Government has, by its notification No. D TPB 1073/33184 published in the Government Gazette dated 25th Juiy, 1974, wspended certain regulations of the principal Scheme but this suspension has not the same effect as withdrawal or abandonment is more of the scheme which admittedly has not been done. What sigmficant is that there has not been a total or wholesale suspension of all the regulations by virtue of the aforesaid notification. On the con- trary, , the Government has been careful enough to allow regulations Nos 36 and 38 besides some others to continue. Thus the regula tions which are material for our purpose having been specifically saved, the notice (Exh 'B') is immune from the impact of the aforesaid notifi cation. E Variation of the Scheme : Though there is a proposal for varia- tion of the Principal Scheme, the same has not so far materialized. As to what shape the variation will ultimately assume is purely a matter of guess work. As such, until it is actually carried into effect, proposed variation is of no legal consequence and the case has to decided keeping in view its own facts and circumstances and the rele- ·In Willow Wren Canal Carrying vant law as at present in existence. Co. Ltd. v. British Transport Commission('), it was held that the plaintiffs were entitled to have their action tried according to law as G in force and the court would not take into account the possible effect of a bill before the Parliament which may never become a law or if passed into law may contain provisions which ultimately do not effect the rights of the parties before the Court. F Re : Point No. 7 : -This point is also devoid of merit. Nothing has ~en brought to our notice on behalf of the appellants to show that it is the local authority and not the landlord who has the power evict the tenant on the ground specified in clause (hhh) of sub-section to H 0) [1956] I All E.R. 567. 626 SUPREME COURT REPORTS [1977] 3 S.C.R. A B (1) of section 13 of the Bombay Rents Control Act, 1947. More over the submission made on behalf of the appellants conveniently overlooks the provisions of section 507 of the Bombay Municipal Cor poration Act, 1888 whereunder the landlord can get an order against the tenan;t to allow him (the landlord) reasonable facilities to enter the leased premises in order to enable him to comply with the notice issued by the Municipal Commissioner. For the foregoing reasons, there is no merit in any of the points raised by the appellants. Consequently, the appeals fail and are hereby dismissed bnt in view of the circumstances of the case without any order as to costs. Respondent No. 1 shall not, however, as ag reed to on its behalf, evict tl1e appellants till the. end of the year, 1977 A.D. unless it is required by the Municipal Commissioner at any time before that date to pull down the premises in question in implementa tion of the scheme. P.B.R. Appeals dismissed.