Full Judgment Text
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PETITIONER:
BMRDA
Vs.
RESPONDENT:
GOKAK PATEL VOLKART
DATE OF JUDGMENT13/12/1994
BENCH:
SEN, S.C. (J)
BENCH:
SEN, S.C. (J)
JEEVAN REDDY, B.P. (J)
CITATION:
1995 SCC (1) 642 JT 1995 (1) 155
1994 SCALE (5)256
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
SEN, J.- Leave granted.
2.On 28-5-1974, Gokak Patel Volkart Ltd, submitted a plan
for construction of two houses at premises Nos. 124-126
Wodehouse Road, Colaba, Bombay, to the Municipal Corporation
of Greater Bombay. The said two houses were occupied by
tenants. The plan was for construction of a thirty-storeyed
building utilising Floor Space Index (for short FSI) of 2.45
of the said plot.
3.The Development Control Rules existent at the relevant
time permitted construction of building on the FSI of 2.45
under R-8 FSI zone in which the above property was situated.
The plan was approved by the Corporation and on 13-9-1974
Intimation of Disapproval (IOD) was granted to the Company
under Section 346 of the Bombay Municipal Corporation
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Act. It was stipulated in the IOD that no work should be
started unless the existing structures proposed to be
removed were in fact removed. It was also stated in the IOD
that it was given exclusively for the purposes of enabling
the party to proceed further with arrangements of obtaining
"No Objection" Certificate from the Housing Commissioner
under Section 13(bb) of the Bombay Rents, Hotel and Lodging
House Rates Control Act. In pursuance of the IOD granted by
the Corporation, the Company initiated proceeding for
eviction of the tenants from the existing structures on the
property in question. Ultimately in August 1979, the
tenants were evicted and old structures were demolished. In
the meantime, in 1975, the State Legislature of Maharashtra
enacted the Bombay Metropolitan Region Development Act, 1974
(Maharashtra Act No. IV of 1975) to provide for the
establishment of an authority for the purpose of planning,
coordinating and supervising the proper, orderly and rapid
development of the areas falling within ,hat region. The
said Act came into force with effect from 26-1-1975.
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Section 13 of the Act provides:
"13. (1) Notwithstanding anything contained in
any law for the time being in force, except
with the previous permission of the Authority,
no authority or person shall undertake any
development within the Metropolitan Region of
the type as the Metropolitan Authority may
from time to time specify, by notification
published in the Official Gazette, and which
is likely to adversely affect the overall
development of the Metropolitan Region.
(2)Any authority or person desiring to
undertake development referred to in sub-
section (1) shall apply in writing to the
Metropolitan Authority for permission to
undertake such development.
(3)The Metropolitan Authority shall, after
making such inquiry as it deems necessary and
within 60 days from the receipt of an
application under sub-section (2), grant such
permission without any conditions or with such
conditions as it may deem fit to impose or
refuse to grant such permission. If such
permission is not refused within 60 days as
aforesaid, it shall be deemed to have been
granted by the Authority.
(4)Any authority or person aggrieved by the
decision of the Metropolitan Authority under
sub-section (3), may, within 30 days, appeal
against such decision to the State Government,
whose decision shall be final."
4. The Metropolitan Authority, in exercise of powers under
sub-section (1) of Section 13 of the said Act, published
in the Official Gazette a notification dated 10-6-1977
providing, inter alia, that no construction or
reconstruction of any building including addition to any
existing building shall be carried out so as to have a Floor
Space Index exceeding 1.33.
5. As a result of the provisions of Section 13(1) of the
Act and the notification dated 10-6-1977, a person desiring
to undertake development in contravention of the
notification had to apply in writing to the authority for
permission to undertake such development. The authority
could grant
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permission without any condition or with such conditions as
it thought fit or refuse to grant such permission. This has
to be done within 60 days from the receipt of the
application under sub-section (2) of Section 13. If the
permission was not refused within the aforesaid period of 60
days under subsection (3) of Section 13, such permission
should be deemed to have been granted by the authority.
6. In view of the above developments, on 14-7-1977, Gokak
Patel Volkart Ltd. (hereinafter described as "the
respondent-Company"), applied to the Bombay Metropolitan
Region Development Authority (hereinafter described as
’BMRDA) under Section 13(2) of the Bombay Metropolitan
Region Development Authority Act, 1974 (hereinafter referred
to as ’the Act’) for permission to undertake the above
development with the FSI of 2.45. The said application was
received by the BMRDA on 15-7-1977. The permission was
refused by the Metropolitan Authority under Section 13(3) of
the Act on 8-9-1977. The respondent-Company preferred an
appeal to the State Government under Section 13(4) of the
Act on 19-9-1977 which was allowed by the State Government
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on 23-2-1978. Accordingly, the respondent-Company was given
a commencement certificate under Sections 344 and 345 of the
Bombay Municipal Corporation Act on 31-3-1980.
7. Soon thereafter a writ petition was filed by the
residents of Colaba challenging the above order of the State
Government under Section 13(3) of the Act allowing the
appeal of the respondent-Company against the order of the
Metropolitan Authority. By a judgment dated 5-4-1984 passed
by the Bombay High Court, the order of the State Government
as well as the order passed by the Metropolitan Authority
under Section 13(3) of the Act rejecting the application of
the respondent-Company were set aside with a direction to
the Administrator of the Municipal Corporation of Greater
Bombay to consider the application afresh and pass
appropriate orders.
8. The material part of the order was as under:
"Accordingly, the petition succeeds and the
impugned order dated 23-2-1978 passed by
Minister for Housing and BMRDA is set aside
and so also the order passed by Respondent 3
rejecting the application and which was
communicated to Respondent 4 on 8-9-1977.
Respondent 3 is directed to reconsider the
application dated 14-7-1977 filed by
Respondent 4 under sub-section (2) of Section
13 of the Act, in accordance with the
observation made in this judgment and pass
appropriate orders. Respondent 3 shall pass
the orders as expeditiously as possible."
9. The Metropolitan Authority took up’ the application of
the respondent Company under Section 13(3) of the Act for
reconsideration in pursuance of the above order of the Court
and by the order dated 19-9-1984 rejected the application
under Section 13(3). Against that, the respondent-Company
filed appeal on merits before the State Government on 16-10-
1984 which is still pending.
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10.On the very next day, the writ petition was also filed
in the High Court of Judicature at Bombay by the respondent-
Company, challenging the order of the Metropolitan Authority
passed under Section 13(3) rejecting the application of the
respondent-Company under Section 13(2) of the Act on the
ground that in the facts and under the circumstances of the
case and in view of the lapse of sixty days stipulated in
Section 13(3) of the Act, permission was deemed to have been
granted to the respondent-Company by the Metropolitan
Authority and in that view of the matter, the order of
rejection passed under Section 13(3) was illegal and without
jurisdiction.
11.The Division Bench of the Bombay High Court upheld the
contention of the Company and held that permission must be
deemed to have been granted to construct the building
according to the plan in view of the fact that such
permission had not been refused within 60 days as required
by sub-section (3) of Section 13 of the Act. In coming to
this decision the Division Bench took note of the following
facts. The judgment in the earlier writ petition had been
delivered on 5-4-1984 by which order of the Metropolitan
Authority passed under Section 13(3) had been set aside.
There was a direction to pass a fresh order, that direction
was not carried out at all. BMRDA applied for certified
copy of the judgment on 18-4-1984; on 24-5-1984 the Company
communicated the operative part of the order dated 5-4-1984
to BMRDA. The Executive Committee of the BMRDA sat on 18-7-
1984 and again on 24-7-1984 and finally decided to reject
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the application of the respondent-Company under Section
13(2) of the Act on 17-9-1984. The BMRDA had no
jurisdiction to pass any order under Section 13(3) of the
Act on 17-9-1984, as the requisite period of 60 days
provided by under Section 13(3) had expired by that time.
It was held by Division Bench that the order dated 17-9-1984
refusing to grant permission passed by the Authority was
illegal. The said order was passed beyond the statutory
period of 60 days, therefore, permission shall be deemed to
have been granted by the Authority in terms of Section 13(3)
of the Act.
12.The contention of the appellant in this appeal is that
in the first place the writ petition should not have been
entertained. The writ petitioner had an adequate
alternative statutory remedy. The writ petitioner had in
fact already taken advantage of alternative remedy provided
by the statute and had preferred an appeal against the
judgment of the Tribunal. While the said appeal was pending
the writ petitioner invoked the writ jurisdiction of the
Bombay High Court praying more or less the same remedy as
was prayed in the appeal.
13.We are of the view that the point taken by the
appellant is of substance. This is a case, where there is
not only the existence of an alternative remedy but the writ
petitioner actually had availed of that remedy. The writ
petitioner’s appeal before the statutory authority was
pending. In that view of the matter this writ petition
should not have been entertained.
14.The second point urged by Mr Salve is also of
substance. The respondent had applied to BMRDA for
permission to undertake the
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development work with the FSI of 2.45 under sub-section (2)
of Section 13 of the Act. That application was received by
the BMRDA on 15-7-1977. The application was rejected by an
order passed on 8-9-1977 within the requisite period of 60
days from the receipt of the application as laid down in
subsection (3) of Section 13. The statutory fiction of
deemed permission arises only if there is a failure on the
part of the Metropolitan Authority to pass an order within
60 days of the receipt of the application. No question of
this time-limit arises when the Appellate Authority quashes
the order and directs a fresh order to be passed. In such a
situation there cannot be any question of passing an order
within 60 days from the receipt of the application under
sub-section (2) of Section 13. The application was received
by the Metropolitan Authority on 15-7-1977. In order to
accept the contention of the respondent it has to be deemed
that the receipt of the application was on the date of the
judgment which was passed on 5-4-1984 or any subsequent
date. There is nothing in the wording of sub-section (3) of
Section 13 justifying such a construction.
15.Mr Nariman appearing on behalf of the Company drew our
attention to the decision of this Court in the case of Shree
Chamundi Mopeds Ltd. v. Church of South India Trust Assn.’ A
distinction was drawn between quashing an order and stay of
operation of an order. It was explained in that judgment
that quashing of an order resulted in restoration of the
position as it stood on the date of passing of the order.
The stay of the operation of the order, however, did not
lead to such results.
16.It is true that the order dated 17-9-1984 after being
quashed did not remain in suspended animation. That would
have been the case, had the order been merely stayed. That,
however, does not mean that the Metropolitan Authority had
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failed to pass an order within 60 days of the receipt of the
application.
17.As a matter of fact, the application received by the
Metropolitan Authority on 15-7-1977 was disposed of by an
order dated 8-9-1977 within the requisite period of 60 days.
Therefore, there is no question of the deeming provision
coming into operation in this case at all. The order passed
by the Metropolitan Authority may have been quashed by the
High Court but the fact remains that an order was actually
passed within the requisite period of time. The deeming
provision would have come into operation only if no order
was passed within 60 days of the receipt of the application
on 15-7-1977.
18.After the High Court quashed the order passed by the
Metropolitan Authority on 17-9-1984, a fresh order had to be
passed under the direction of the Court and not on the basis
of any fresh application. This fresh order could not have
possibly been passed within 60 days of the receipt of the
application on 15-7-1977. The High Court could have fixed a
time-limit for passing a fresh order. If such a time-limit
had been fixed, the Metropolitan Authority had to pass an
order within that period. But in this case no time-
(1992) 3 SCC 1
649
limit was fixed by the High Court. Therefore, the
Metropolitan Authority had to pass a fresh order within a
reasonable time.
19.It is well settled that when the statute lays down the
period of limitation for passing an order that requirement
is fulfilled as soon as an order is passed within that
period. If the order is set aside on appeal and the
appellate order directs a fresh order to be passed then
there is no requirement of law that the consequential order
to give effect to the appellate order must also be passed
within the statutory period of limitation. This proposition
of law is well settled.
20.In the case of Director of Inspection of Income Tax
(Investigation) v. Pooran Mall2 this Court repelled the
contention that the Income Tax Officer had no jurisdiction
to pass an order under Section 132(5) of the Income Tax Act
when the order initially passed by him within the period of
limitation had been set aside by the appellate authority, It
was held in that case that the period of time fixed for
passing an order under Section 132(5) applied only to the
initial order and not to any subsequent order that may have
to be passed under the direction given by a statutory
authority or by a court in a writ proceeding. It was
observed: (SCC p. 572, para 6)
"Even if the period of time fixed under
Section 132(5) is held to be mandatory that
was satisfied when the first order was made.
Thereafter, if any direction is given under
Section 132(12) or by a court in writ
proceedings, as in this case, we do not think
an order made in pursuance of such a direction
would be subject to the limitations prescribed
under Section 132(5). Once the order has been
made within ninety days the aggrieved person
has got the right to approach the notified
authority under Section 132(11) within thirty
days and that authority can direct the Income
Tax Officer to pass a fresh order. We cannot
accept the contention on behalf of the
respondents that even such a fresh order
should be passed within ninety days. It would
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make the sub-sections (11) and (12) of Section
132 ridiculous and useless. It cannot be said
that what the notified authority could direct
under Section 132 could not be done by a court
which exercises its powers under Article 226
of the Constitution. To hold otherwise would
make the powers of courts under Article 226
wholly ineffective. The court in exercising
its powers under Article 226 has to mould the
remedy to suit the facts of a case."
21. Mr Nariman next drew our attention to the decision of
the Court of Appeal in the case of R. v. Paddington
Valuation Officer3. In particular we were referred to the
judgment of Salmon, L.J. wherein it was observed:
"I am not altogether satisfied that there
would be any power to grant mandamus and keep
the 1963 valuation list in force by the simple
expedient of postponing certiorari until after
a new list had been prepared. No doubt it
would be convenient, if possible, to follow
this course, were the appeal to be allowed;
indeed grave inconvenience, if not
2 (1975) 4 SCC 568 : 1975 SCC (Tax) 346:
(1974) 96 ITR 390
3 (1966) 1 QB 380: (1965) 2 All ER 836
650
chaos would follow if the 1956 valuation list
were to be revived which both the appellants
and respondents at first agreed would be the
inevitable result of allowing the appeal. It
may be that mandamus can be granted without
certiorari, but mandamus cannot be granted if
there is a valid valuation list in being. It
is not enough that the valuation officer
should have prepared the list badly or even
very badly. In such a case, he could not be
ordered by mandamus to correct his mistakes or
make a new list. In order for mandamus to
lie, it must be established that he has
prepared the list illegally or in bad faith,
so that in effect he has not exercised his
statutory function at all and that accordingly
there is in reality no valid list in
existence: R. v. Cotham ex parte William4.
Accordingly, it seems to me that a finding
that the list is null and void is necessarily
implicit in an order of mandamus."
22.We fail to see, how the respondents can derive any
support for their case from these observations of Salmon,
L.J. That was a case where it was found that the valuation
officer had prepared a valuation list of 31,656 dwellings at
Paddington erroneously. There was a prayer for certiorari
to quash the list altogether. There was also another prayer
for a writ of mandamus directing the valuation officer to
prepare a new list. Lord Denning, M.R. held that if the
valuation list was entirely quashed there will be chaos.
Therefore, the existing list could remain until it was
replaced by a new list, when the new list was prepared the
old list will be quashed by writ of certiorari. Lord
Denning was of the view that certiorari was not a necessary
prerequisite to mandamus.
23.Lord Salmon, L.J. did not express any final opinion on
the controversy. It was observed:
"Having regard to the view, however, that I
take of the facts, the point as to whether the
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1963 list could be temporarily kept alive were
mandamus to issue does not arise for decision
and I express no concluded opinion upon it."
24.In the case before us the decision taken by
Metropolitan Authority on the application of the respondent
has been quashed. Direction has been given to dispose of
the application afresh. This direction does not make any
sense unless in reality there was an earlier order dealing
with the application made by the respondent. It cannot be
said that the Metropolitan Authority had not passed any
order, erroneously or otherwise, within 60 days of the
receipt of the application. The order that was passed may
have become null and void in law but the fact of the matter
is that an order had actually been passed, otherwise there
would have been no question of issuance of a writ of
certiorari for quashing of that order.
25.In the case of Supdt. of Taxes v. Onkarmal Nathmal
Trust5 this Court dealt with the question whether a notice
under Section 7(2) of the Assam Taxation (On Goods Carried
by Road or Inland Waterways) Act, 1961 was
4 (1898) 1 QB 802
5 (1976) 1 SCC 766: 1975 Supp SCR 365
651
valid. The prescribed period of limitation under the Act
was two years from the expiry of the relevant period. There
was a difference of opinion on this point. The majority
view was that the State was guilty of laches even though the
State was restrained by an order from taking any action
under the Act. The State did not pray for modification of
the order. The State followed the policy of inactivity.
Therefore, the notice under Section 7(2) issued in that case
was held invalid.
26.In the instant case, there is no question of any
inactivity. The appellant had passed an order within 60
days, which was ultimately quashed by the High Court. The
deeming clause under Section 13(3) comes into operation only
when the Metropolitan Authority fails to pass an order
within a period of 60 days from the receipt of the
application. But if an order is passed and that order is
quashed by the appellate authority or by the High Court, the
deeming clause does not become operative straightaway. The
appellate order will now hold the field and fresh order will
have to be passed in terms of the order of the appellate
authority or the Court.
27.The last contention of Mr Nariman was that the impugned
order dated 17-9-1984 had been passed under Section 13(3) of
the BMRDA Act. The Metropolitan Authority had no
jurisdiction to pass any order dealing with the application
made by the respondent under any other provision except
Section 13(3). If the order is not under Section 13(3) then
the respondent will have no right to appeal against that
order.
28.There can be no dispute about this preposition. The
consequential order passed by the Metropolitan Authority
after it was quashed by the High Court must be treated as an
order under Section 13(3) of the Act for the purpose of
appeal and the limitation must be counted from the date of
the fresh order. But that does not answer the question
whether the time-limit for passing an order under sub-
section (3) of Section 13 will apply to the fresh order
which will now have to be passed. That question has been
answered in the case of Pooran Mall2 referred to earlier in
the judgment.
29.In the premises this appeal is allowed. The judgment
under appeal dated 15-6-1994 is set aside. The appellant
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will be at liberty to proceed in accordance with law. There
will be no order as to costs.
Civil Appeals Nos. 9153-54 of 1994 [Arising out of SLPs (C)
Nos. 15942 & 15982 of 1994]
30. Leave granted.
31. In view of our judgment in Civil Appeal No. 9152 of
1994 [arising out of SLP (C) No. 14848 of 1994], the above
appeals are also allowed. There will be no order as to
costs.
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