Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4
PETITIONER:
THE BIHARI MILLS AND ANOTHER
Vs.
RESPONDENT:
THE AHMEDABAD MUNICIPALCORPORATION
DATE OF JUDGMENT:
09/04/1963
BENCH:
ACT:
Appeal-Order by Officer under Statute-Statute providing for
appeal to authority specified-Statute repealed-New statute
substituting new officer and new appellate authority-Order
under old statute-If appealable to authority under new
statute Bombay Town Planning Act, 1915 (Bom. 1 of 1915).
Bombay Town Planning Act, 1954 (Bom. 27 of 1955), s. 90.
HEADNOTE:
In 1942, a scheme was sanctioned under the Bombay Town
Planning Act, 1915, for an area under the Ahmedabad
Municipal Borough. The Arbitrator appointed under the 1915
Act finalised the scheme. From July 1, 1950, the Borough
was converted into the Ahmedabad Municipal Corporation. The
1915 Act was repealed by the Bombay Town Planning Act 1954,
with effect from April 1, 1957. On March 28, 1958, the
Arbitrator passed certain orders affecting the appellants.
Against the decisions of the Arbitrator the appellants
preferred appeals before the Board of appeal set up under
the Act. The question was whether the appeals were
competent.
Held that no appeal lay from the order of the Arbitrator
appointed under the 1915 Act to the Board of Appeal set up
under the 1954 Act. Under the 1915 Act an appeal lay from
an order of the Arbitrator to the Tribunal of Arbitration.
In the 1954 Act the Arbitrator was substituted by a Town
Planning officer and the Tribunal of Arbitration by Board of
Appeal. The saving clause in s. 90 of the 1954 Act
continued the appointment of the Arbitrator made under the
1915 Act and also kept alive the proceedings before him, but
it did not provide for the continuance of the Tribunal of
Arbitration. The Arbitrator did not become a Town Planning
officer and his decision or order did not have the effect of
an order by the Town Planning officer so as to become
appealable to the Board of appeal.
916
JUDGMENT:
CIVIL APPRLLATE JURISDICTION : Civil Appeals Nos. 133 and
134 of 1962.
Appeals by special leave from the judgment and order dated
January 23, 1959 of the Board of Appeal constituted under
the Bombay Town Planning Act No. 27 of 1955 in Tribunal
Appeals Nos. 140-47 of 1958.
G.B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder
Narain, for the appellants.
S.P. Desai and I. N. Shroff, for the respondents.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4
1963. April 9. The judgment of the Court was delivered by
SINHA C. J.-These two consolidated appeals, by special
leave, raise the question of the interpretation of certain
provisions of the Bombay Town Planning Act, 1954 (Bombay
XXVII of 1955) which hereinafter will be referred to as the
Act, with particular reference to the scope and effect of s.
90 of the Act, whereby the Bombay Town Planning Act (Bombay
I of 1915) was repealed, and certain orders of the State
Government saved from the effect of the repeal.
It appears that the Ahmedabad Municipal Borough, which was
replaced by the Ahmedabad Municipal Corporation-the sole
respondent in these appeals and which hereinafter will be
referred to as the Borough and the Corporation respectively
its intention by a resolution dated October 1, 1941, to
promulgate a scheme under the Act of 1915 in respect of the
area known as Khokhara-Mohmedabad. The said Scheme was in
due course sanctioned by the Government of Bombay on July
14, 1942. Under that Act an arbitrator was appointed in
respect of the said Scheme, as required
917
under the Act. Shri R. N. Parikh was eventually appointed
the Arbitrator under the Act. He finalised the Scheme under
the Act of 1915. The Borough was converted into the
Ahmedabad Municipal ,Corporation under the Bombay Provincial
Municipal Corporation Act of 1949 with effect from July 1,
1950. The Act of 1915 was repealed by the Act which came
into force from April 1, 1957. The said Arbitrator notified
to the appellants a memorandum dated March 23, 1958,
extracting his decision in respect of the said Scheme, in so
far as it affected the appellants. The Government of Bombay
constituted a Board of Appeal under the Act, consisting of
three persons whom it is not necessary to specify. The
appellants filed two appeals against the award of the said
Arbitrator. The said Board of Appeal heard the appellants’
appeals, as also appeals by other persons, in all 151
appeals, in respect of the said Scheme. It is from the
decision, dated January 23, 1959, of the said Board of
Appeal that the appellants have appealed to this Court, on
obtaining special leave.
Section 30 of the Act of 1915 lays down the duties of the
Arbitrator in some detail, running into ten clauses, and a
number of sub-clauses. The decision of the Arbitrator,
except on matters covered by sub-sections (3A), (3B), (3C),
(4), (6) and (9) of s. 30 have been declared by s. 31 to be
final. The matters in respect of which his decision has not
been declared to be final, as aforesaid, the Arbitrator’s
conclusions have been characterised as proposals by s. 32 of
the Act of 1915, and those matters were to be submitted to
the Tribunal of Arbitration, constituted under s. 33 (1),
for its decision. It would thus appear that on certain
matters which came under the purview of the Arbitrator’s
powers, the decision of the Arbitrator was final, and in
other matters they were merely proposals to be submitted for
the decision of the Tribunal of Arbitration. When the
918
Act of 1915 was repealed by the Act, it saved certain orders
and proceedings by s. 90, which will be set out and
discussed later. Under the Act, s. 31 contemplates the
appointment of a Town Planning officer, who is a substitute
of the Arbitrator under the Act of 1915. Section 32 lays
down in great detail the duties of the Town Planning
officer, which may be equated with s. 30 of the Act of 1915.
Section 33 declares certain decisions except under s. 32
(1), cls. (v), (vi), (viii), (ix), (x) and (xiii), of the
Town Planning officer to be final and conclusive and binding
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4
on all persons, while decisions of the Town Planning
officer, under the above clauses, are subject to appeal to
the Board of Appeal, under s. 34, to be constituted under s.
35. It will thus appear that the Act has equated the
Arbitrator under the Act of 1915 with the Town Planning
officer and the Tribunal of Arbitration with the Board of
Appeal. Though under the former Act the Arbitrator is a
part of the Tribunal of Arbitration, under the Act certain
decisions of the Town Planning officer are appealable to the
Board of Appeal. It is common ground that Shri Parikh, the
Arbitrator under the Act of 1915, has not been, in terms,
appointed the Town Planning officer under the Act.
After setting out the relevant provisions of the Act of 1915
and the Act, it is necessary to State that the decision
given by the Arbitrator, Shri R.N. Parikh, functioning under
the Act of 1915, could be reviewed by the Tribunal of
Arbitration, but as there was no such Tribunal in existence
on and after that date, the appellants preferred appeals to
the Board of Appeal, constituted under the Act. Those
appeals were disposed of by the Board by its order dated
January 23, 1959. It is the legality of that order that is
in question before us.
It is submitted on behalf of the appellants that they
preferred their appeals to the Board, which
919
was the only appellate authority in existence, and which
mistakenly they were advised to be the competent tribunal to
deal with the appeals. It was -further argued that on a
true construction of the provisions of the Act and the Act
of 1915, it is clear that the Board of Appeal had no
jurisdiction to render any judgment in respect of the
decisions or proposals of the Arbitrator. In our opinion,
this contention is well-founded. Reliance was placed in
this connection on the provisions of s. 90 of the Act, the
relevant portions of which may be set out below :
"(1) The Bombay Town Planning Act, 1915, is
hereby repealed.
(2) Notwithstanding the repeal of the said
Act any appointment made of an arbitrator, any
proceedings pending before the Arbitrator ...
under the repealed Act shall, in so far as it
is not inconsistent with this Act, continue in
force thereunder and provisions of this Act
shall have effect in relation to such
proceedings
It is clear that the saving clause was effective to continue
the appointment of the Arbitrator made under the repealed
Act, and also to keep alive the proceedings before him. But
the proposals made by him had to be dealt with by the
Tribunal of Arbitration, which was not continued by the
saving clause, aforesaid. The board of Appeal constituted
under s. 35 of the Act was competent to deal with any
decision of the Town Planning officer, but the Arbitrator
under the old Act did not ipso facto become, without an
express order of the Government appointing him, a Town
Planning officer; and any decision or order by the
Arbitrator would not have the effect of an order by the
latter. That lacuna
920
does not appear to have been removed by any subsequent
legislation or order of the Government of Gujrat, under the
Act. Some lacunae were discovered in the working of the Act
and the Government of Maharashtra came out with the Bombay
Town Planning (Amendment and Proceedings Validation) Act,
1960 (Maharashtra Act XXIV of 1960). By s. 2, sub-s. (4) of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4
this Act, it has been provided that "reference to Town
Planning officer In this Act shall -include reference to an
Arbitrator whose appointment is continued in force under
sub-section (2)" set out above. No such action was taken by
the Government of Gujrat, nor any validating Act passed by
the Gujrat Legislature. It is thus manifest that the
appeals preferred by the appellants against the order of the
Arbitrator as such did not lie to the Board of Appeal, and,
therefore the Board was incompetent to deal with them, with
the result I that the orders purported to have been passed
-by the Board on those appeals are without jurisdiction. We
need not go into the further question as to the effect of
the orders of the Arbitrator which had been challenged by
the appellants as it now appears without effect.
In the result, these appeals are allowed. But in view of
the fact that the appellants themselves were at least partly
responsible for making those infructuous appeals, there will
be no order as to costs in this Court.
Appeals allowed.
921