The Bihari Mills & ANR Vs. The Ahmadabad
Municipal Corporation  INSC 91 (9 April 1963)
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providing for appeal to authority specified-Statute repealed-New statute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.
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 Ahmadabad 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 The 1915 Act was repealed by the Bombay Town Planning Act 1954,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.
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
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.
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
It appears that the Ahmadabad 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 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
"(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
under the repealed Act shall, in so far as it
is not inconsistent with this Act, continue in force there under 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 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 in fructuous appeals, there will be no order as to
costs in this Court.