Jaswant Singh, J. - (1.) These two appeals by special leave granted by this Court which are directed against the judgment and order dated 20-3-1972 of the High Court of Bombay at Special Civil Applications Nos. 1686 and 1987 of 1969 shall be disposed of by this judgment.
(2.) The subject-matter of dispute which has wended its way to this Court is a godown, being godwon No. built on Plot No. 37 bearing C. S. No. 130, Elphinstone Estate at Masjid Siding Road, Kurla Street, Bombay-9 which belongs to Port Trust, Bombay. Respondent No. 1 in both the above mentioned appeals viz. M/s. Benett Coleman and Co. got the aforesaid plot No. 37 as also plot No. 36 on lease from the Port Trust. Bombay, on 1st August, 1933 on a yearly rent of Rs. 416.89, On plot No. 37, the said respondent erected some godowns which along with certain other buildings that had grown up in a haphazard manner and could be described as slums were destroyed as a result of terrific explosions which occurred on April 14, 1944 in the Bombay Docks, Being of the view that it was extremely desirable that rebuilding in the devastated area should be carried out on modern principles of town planning. The Bombay Municipal Corporation by its resolution No. 763 dated 23rd November, 1944, declared its intention to formulate a town planning scheme under the provisions of the Bombay Town Planning Act of 1915 the Government of Bombay sanctioned the making of the Scheme by their resolution No. 5355/33 dated 9th July 1945 published in Official Gazette dated 12th July, 1945. As the preparation of the scheme was likely to take time and it was necessary to restrain owners of building in the devastated area from reconstructing them in a haphazard manner which would conflict with the proposed scheme, the Governor of Bombay in exercise of the powers vested in him by virtue of the proclamation dated 4th November, 1939, issued by him under Section 93 of the Government of India Act, 1935 assuming to himself inter alia all the powers vested by or under the Government of India Act, 1935 in either chamber of the Provincial Legislature made an Act called the City of Bombay (Building Works Restriction) Act, 1944 (Bombay Act No. XVIII of 1944) (hereinafter referred to as the Bombay Act 1944) Section 2 of this Act ordained that unless there is anything repugnant in the subject or context, words and expressions used in the Act shall have the same meaning as in the principal Act viz, the City of Bombay Municipal Act, 1888 (Bombay III of 1888), Section 3 of this Act prohibited every person during the period of one year from the date of the commencement of the Act to do any work of erecting, re-erecting, constructing, reconstructing, adding to or altering or repairing any building, wall or other structure or any part thereof situated in the area bounded on the South by the northern edge of Carnac Road and Carnac bridge, on the East by the Western edge of the Frere Road, on the North by the southern edge of Elphinstone Road and Sandhurst Road and on the West by the eastern edge of Mohamadally Road or leying out any private street in the said area, except under the authority of a written permission granted by the Commissioner and in accordance with such conditions, if any, as the Commissioner might think fit to specify in the permission:The proviso to the section authorised the Provincial Government to extend the aforesaid period of one year by means of notification published in the Official Gazette. In exercise of the power conferred by the proviso, the Government of Bombay extended the period referred to in Section 3 of the Act in respect of the restriction of building works without permission upto and inclusive of the 31st day of December, 1946. Section 8 of the Act provided that the benefit of any written permission granted under Section 3 shall be annexed to and shall go with the ownership of the building, wall or other structure or private street, as the case may be, in respect of which it was granted and may be enforced by every person in whom that ownership so for the time being vested. By means of notification dated 3rd April, 1946, the Governor of Bombay in exercise of the powers conferred on him by sub-section (2) of Section 93 of the Government of India Act, 1935 made a proclamation with the concurrence of the then Governor-General revoking the aforesaid proclamation dated 4th November, 1939 as subsequently varied by the proclamations dated the 15th February, 1943 and 20th November, 1945. Section 93 of the Government of India Act, 1935 under which the proclamations dated the 4th November, 1939, 15th February, 1943, 20th November, 1945 and 3rd April, 1946 were made provided as follows:- Provisions in case of failure of constitutional machinery. "93. Power of Government to issue Proclamation.- (1) If at any time the Governor of a Province is satisfied that a situation has arisen in which the Govt. of the Province cannot be carried on in accordance with the provisions of this Act, he may by proclamation. (a) declare that his functions shall, to such extent as may be specified in the Proclamation be exercised by him in his discretion; (b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority; and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of his Act relating to any Provincial body or authority: Provided that nothing in this subsection shall authorise the Governor to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provision of this Act relating to High Courts. (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation. (3) A Proclamation under this section: (a) shall be communicated forthwith to the Secretary of State and shall be laid by him before each House of Parliament: (b) unless it is a Proclamation revoking a previous Proclamation, shall cease to operate at the expiration of six months:- Provided that, if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of twelve months from the date on which under this subsection it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years. (4) If the Governor, by a Proclamation under this section assumes to himself any power of the Provincial Legislature toake laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature, and any reference in this Act to Provincial Acts. Provincial Laws, or Acts or Laws of a Provincial Legislature shall be construed as including a reference to such a law. (5) The functions of th Governor under this section shall be exercised by him in his discretion and no Proclamation shall be made by a Governor under this section without the concurrence of the Governor-General in his discretion".
(3.) On 23rd September, 1947 the Municipal Commissioner, Bombay granted written permission (Exh. A to respondent No. 1 under Section 3 of the Bombay Act, 1944, to raise temporary structure in the form of godowns on the aforesaid plot No. 37 at C. S. No. 130, Masjid Siding Road, Bombay, subject inter alia to the following express conditions. "(a) The provisions of the Municipal Act and bye-laws made thereunder in force from time to time shall be complied with; (b) The Commissioner may at any time direct the owner of the said premises to pull down or remove the work hereby permitted or any portion thereof forthwith or within such time as he may prescribe. No compensation shall be claimable by or payable to the owner. Further if any such directions is not complied with by the owner, the same may be enforced or carried out in the manner provided by S. 489 (1) (of the Municipal Act). (c) No compensation whatsoever, whether for damages loss or injury, shall be claimable by or payable to the owner or any other person in respect of any work carried out pursuant to this permit, if the building wall comes within (i) the regular line of any street, (ii) any improvement scheme that may be made under the provisions of the Municipal Act, (iii) any town planning scheme that may be made under Bombay Building Town Planning Act, 1915. (d) The conditions of this permit shall bind not only the owner of the said premises but also his heirs, executors, administrators".;