NATHUBHAI DHULAJI Vs. MUNICIPAL CORPORATION BOMBAY

JUDGEMENT

(1.) These two appeals arise from decrees passed by the City Civil Court, Bombay, dismissing the appellants' suits. Although these appeals which have been fully and ably argued on both sides are heard together, they will have to be dealt with separately. The principal argument was addressed in First Appeal No. 224 of 1957 and for the sake of convenience, I will deal with that appeal first.

(2.) The facts giving rise to suit No. 2011 of 1956, from which appeal No. 224 of 1957 arises, are shortly these. The plaintiffs are tenants of a building known as "Mor Bungalow", situate at Tejpal Road, Vile Parle. It appears that the house was constructed in or about the year 1910. On 28-12-1954 a notice under Section 354 of the Bombay Municipal Corporation Act was served upon defendant No. 1, which is a limited company and the owner of he property, requiring the first defendant to do certain repairs. On 14-2-1956 a second notice under Section 354 was served upon defendant No. 1 asking the first defendant to pull down the building as stated in the notice within a specified period of sixty days. Defendant No. 1 then wrote to the plaintiffs on 9-3-1956 intimating to them about the notice served upon it, dated 14-2-1956, and by the letter it asked the plaintiffs to vacate within fifteen days. The plaintiffs wrote a letter to the first defendant, telling it that steps were being taken by which they would endeavour for the withdrawal of the notice. On 22-3-1956 the plaintiffs, by their letter to the City Engineer, asked him to withdraw the notice and also asked for an interview in the company of their architects. On 26-4-1956 the City Engineer gave a reply to the plaintiffs refusing to withdraw the notice served on defendant No. 1. On 13-7-1956 the plaintiffs gave notice of suit as required by Section 527 of the Act and on 31-8-1956 the present suit was filed.

(3.) In the suit, the plaintiff alleged that the notice issued to the first defendant under Section 354 was mala fide issued by the City Engineer in collusion with the first defendant. They also alleged that Section 354 was ultra vires and invalid as it conferred on the Municipal Commissioner and arbitrary, unrestricted and unfettered discretion to order the pulling down of any structure and also because the section did not provide for the parties concerned a reasonable opportunity of being heard. The plaintiffs further contended, that Section 354 was void as it affected the plaintiffs' fundamental rights guaranteed to them under Article 19(1)(f) of the Constitution.