Bmrda Vs. Gokak Patel Volkart  INSC
670 (13 December 1994)
SEN, S.C. (J) SEN, S.C. (J) JEEVAN REDDY,
CITATION: 1995 SCC (1) 642 JT 1995 (1) 155
1994 SCALE (5)256
The Judgment of the Court was delivered by
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.
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
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 645 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.
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
(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."
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.
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 646 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.
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 on
23-2-1978. Accordingly, the respondent-Company was given a commencement
certificate under Sections 344 and 345 of the Bombay Municipal Corporation Act
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.
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."
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.
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.
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 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.
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.
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.
second point urged by Mr Salve is also of substance. The respondent had applied
to BMRDA for permission to undertake the 648 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.
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.
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 failed
to pass an order within 60 days of the receipt of the application.
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.
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.
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
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 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."
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
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.
Salmon, L.J. did not express any final opinion on the controversy. It was
"Having regard to the view, however,
that I take of the facts, the point as to whether the 1963 list could be
temporarily kept alive were mandamus to issue does not arise for decision and I
express no concluded opinion upon it."
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.
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.
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.
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
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.
the premises this appeal is allowed. The judgment under appeal dated 15-6-1994
is set aside. The appellant 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]
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.