(1.) THESE two petitioners under Article 227 of the Constitution raise an interesting question with regard to the interpretation of Section 13 (1) (hhh) of the Bombay Rents, Hotel Lodging House Rates, Control Act, 1947, in connection with a notice issued by the Municipal Commissioner for Greater Bombay which runs as follows : bombay TOWN PLANNING ACT, 1954, town PLANNING SCHEME bombay CITY NO. 1. NOTICE NO. FE/221. To the Times of India, owner : Original Plot No. 37, elphinstone Estate Section. WHEREAS the Government of Bombay has been pleased to sanction the above scheme under Section 51 of the Bombay Town Planning Act, 1954 (XXVII of 1955) on the 4th September, 1957, and to fix the 1st December, 1957, as the date on which the scheme shall come into operation AND WHEREAS the Notification relating to such sanction has been published under No. TPB-1054-M, Local Self Government and Public Health Department at page 2611 of Part I of the Bombay Government Gazette dated the 12th September, 1957 and since under Section 53 of the said Act al rights and liabilities created by said Scheme shall come into force from the 1st December, 1957, the date notified by Government in their above notification AND WHEREAS you are aware that the land delineated on the Scheme Plans (which may be inspected, if necessary, at the office of the City Engineer, Town Planning Scheme No. 1, Bombay Municipal Corporation) upon which your temporary structure stands, is affected by the said scheme AND WHEREAS all the rights of the Local Authority under the Bombay Town Planning Act, 1954 and the Bombay Town Planning Rules, 1955 are hereby expressly reserved AND WHEREAS you were permitted under the City of Bombay (Building Works Restriction) Act 1944 to erect a temporary structure on the terms and conditions mentioned in the said permit AND WHEREAS you agreed to pull down or remove the building or work whenever required by me to do so, you are hereby called upon to pull down and remove the entire building or work in respect of which permission was granted under Permit No. 51/1520/tp dated 23rd December, 1947, on or before 30th October, 1958, failing which I shall cause the building or work to be pulled down or removed under Section 489 of the Bombay Municipal Corporation Act and shall seek to recover the cost thereof as provided by that Municipal Act. Please note that this notice is being served strictly with prejudice to the rights of the local authority under the Bombay Town Planning Act, 1954 and the Bombay Town Planning Rules 1955 which rights are hereby expressly reserved. Dated this 19th September day of 1958.
(2.) THE circumstances in which the said notice was issued by the Municipal Commissioner to the Petitioners may be briefly stated as under :
(3.) THE subject-matter of dispute between the petitioners and the respondents- Nos. 1 and 2 consists of a godown situated at Masjid Siding Road, Kurla Street, Bombay - 1 bearing Ward No. 6-B of Original Plot No. 37, Elphinstone Estate Section. The petitioners Bennett Coleman and Co. Ltd. , were lessees of the plot, Original Pkit No. 37, of Elphinstone estate. They had constructed godowns prior to 1944. In the disaster of Bombay docks explosion of 1944 these godowns were affected along with many other structures in that area due to explosions. At that time the Government of India Act, 1935, was in existence. The Government of Bombay in exercise of the powers vested in him by virtue of proclamation dated November 4, 1939, issued by him under Section 93 of the Government of India Act, 1935, made an act called "the City of Bombay (Building Works Restriction) Act (Bombay Act No. 18 of 1944 ). The Act was published in the Bombay Government Gazette, Part IV dated December 22, 1944. By Section 2 of that Act, the definitions under the Bombay Municipal Act, 1888 were applied to the provisions of that Act. Section 3 of the Act provided -"restriction on building works in certain area without permission : No person shall, during the period of one year from the date of commencement of this Act, do any work of erecting, re-erecting, constructing, reconstructing, adding to, altering or repairing and building, wall, or other structure, or any part thereof situated in the area described in the Schedule, or laying out any private street in the said area, except under the authority of a written permission granted by the Commissioner and except in accordance with such conditions, if any, as the Commissioner may think fit to specify in the permission. Provided that the Provincial Government may by notification in the Official Gazette extend the period referred to in this section. " section 5 of the Act lays down. "whoever contravenes the provisions of Section 3 shall, on conviction, be punishable with imprisonment which may extend to three months or with find which may extend to one thousand rupees or with both. " the Explanation to that section lays down, "if any person who is in occupation, possession or control of any land or building fails without lawful authority or excuse in respect of such land or building to comply or to secure compliance with the provisions of Section 3 or evades or attempts to evade the said provisions, he shall be deemed to have contravened the said provisions. ";