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The Bihari Mills and anr. Vs. the Ahmedabad Municipal Corporation - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtSupreme Court of India
Decided On
Judge
Reported in[1964]2SCR915
ActsBombay Town Planning Act, 1915 - Sections 90; Bombay Town Planning (Amendment) Act, 1954 - Sections 90; States Reorganisation Act, 1956 - Sections 115, 116 and 117
AppellantThe Bihari Mills and anr.
RespondentThe Ahmedabad Municipal Corporation
Excerpt:
civil - appointment of arbitrator - section 90 of bombay town planning act, 1915, section 90 of bombay town planning (amendment) act, 1954, bombay town planning (amendment and proceedings validation) act, 1960 and sections 115, 116 and 117 of states reorganisation act, 1956 - ahmedabad municipal borough replaced by respondent corporation - corporation declared scheme to be promulgated under act of 1915 which was sanctioned by government of bombay for appointment of arbitrator - arbitrator appointed - act of 1915 repealed and certain orders of state government saved - saving clause kept alive proceedings before arbitrator - board of appeal as per act of 1954 had power to deal with any decision of town planning officer - arbitrator under old act did not become town planning officer without..........of s. 90 of the act,the relevant portions of which may be set out below : '(1) the bombay townplanning act, 1915, is hereby repealed. (2) notwithstanding the repeal ofthe said act..... any appointment made of an arbitrator, any proceedingspending before the arbitrator.... under the repealed act shall, in so far as itis not inconsistent with this act, continue in force thereunder and provisionsof this act shall have effect in relation to such..... proceedings....'. 5. it is clear that the saving clause was effective to continue theappointment of the arbitrator made under the repealed act, and also to keepalive the proceedings before him. but the proposals made by him had to be dealtwith by the tribunal of arbitration, which was not continued by the savingclause, aforesaid. the.....
Judgment:

Sinha, C.J.

1. These two consolidated appeals, by special leave, raise the question ofthe interpretation of certain provisions of the Bombay Town Planning Act, 1954(Bombay XXVII of 1955) which hereinafter will be referred to as the Act, withparticular reference to the scope and effect of s. 90 of the Act, whereby theBombay Town Planning Act (Bombay I of 1915) was repealed, and certain orders ofthe State Government saved from the effect of the repeal.

It appears that the Ahmedabad Municipal Borough, which wasreplaced by the Ahmedabad Municipal Corporation - the sole respondent in theseappeals and which hereinafter will be referred to as the Borough and theCorporation respectively - declared its intention by a resolution dated October1, 1941, to promulgate a scheme under the Act of 1915 in respect of the areaknown as Khokhara - Mohmedabad. The said Scheme was in due course sanctioned bythe Government of Bombay on July 14, 1942. Under that Act an arbitrator wasappointed in respect of the said Scheme, as required under the Act. Shri R. N.Parikh was eventually appointed the Arbitrator under the Act. He finalised theScheme under the Act of 1915. The Borough was converted into the AhmedabadMunicipal Corporation under the Bombay Provincial Municipal Corporation Act of1949 with effect from July 1, 1950. The Act of 1915 was repealed by the Actwhich came into force from April 1, 1957. The said Arbitrator notified to theappellants a memorandum dated March 23, 1958, extracting his decision inrespect of the said Scheme, in so far as it affected the appellants. TheGovernment of Bombay constituted a Board of Appeal under the Act, consisting ofthree persons whom it is not necessary to specify. The appellants filed twoappeals against the award of the said Arbitrator. The said Board of Appealheard the appellants' appeals, as also appeals by other persons, in all 151appeals, in respect of the said Scheme. It is from the decision, dated January23, 1959, of the said Board of Appeal that the appellants have appealed to thisCourt, on obtaining special leave.

2. Section 30 of the Act of 1915 lays down the duties of the Arbitrator insome detail, running into ten clauses, and a number of sub-clauses. Thedecision 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 proposalsby s. 32 of the Act of 1915, and those matters were to be submitted to theTribunal of Arbitrations, constituted under s. 33(1), for its decision. Itwould thus appear that on certain matters which came under the purview of theArbitrator's powers, the decision of the Arbitrator was final, and in othermatters they were merely proposals to be submitted for the decision of theTribunal of Arbitration. When the Act of 1915 was repealed by the Act, it savedcertain orders and proceedings by s. 90, which will be set out and discussedlater. Under the Act, s. 31 contemplates the appointment of a Town PlanningOfficer, who is a substitute of the Arbitrator under the Act of 1915. Section32 lays down in great detail the duties of the Town Planning Officer, which maybe equated with s. 30 of the Act of 1915. Section 33 declares certain decisionsexcept under s. 32(1), cls. (v), (vi), (viii), (ix), (x) and (xiii), of theTown Planning Officer to be final and conclusive and binding on all persons,while decisions of the Town Planning Officer, under the above clauses, aresubject to appeal to the Board of Appeal, under s. 34, to be constituted unders. 35. It will thus appear that the Act has equated the Arbitrator under theAct of 1915 with the Town Planning Officer and the Tribunal of Arbitration withthe Board of Appeal. Though under the former Act the Arbitrator is a part ofthe Tribunal of Arbitration, under the Act certain decisions of the Town PlanningOfficer are appealable to the Board of Appeal. It is common ground that ShriParikh, the Arbitrator under the Act of 1915, has not been, in terms, appointedthe Town Planning Officer under the Act.

3. 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 ofArbitration, but as there was no such Tribunal in existence on and after thatdate, the appellants preferred appeals to the Board of Appeal, constitutedunder the Act. Those appeals were disposed of by the Board by its order datedJanuary 23, 1959. It is the legality of that order this is in question beforeus.

4. It is submitted on behalf of the appellants that they preferred theirappeals to the Board, which was the only appellate authority in existence, andwhich mistakenly they were advised to be the competent tribunal to deal withthe appeals. It was further argued that on a true construction of theprovisions of the Act and the Act of 1915, it is clear that the Board of Appealhad no jurisdiction to render any judgment in respect of the decisions orproposals 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 TownPlanning Act, 1915, is hereby repealed.

(2) Notwithstanding the repeal ofthe said Act..... any appointment made of an arbitrator, any proceedingspending before the Arbitrator.... under the repealed Act shall, in so far as itis not inconsistent with this Act, continue in force thereunder and provisionsof this Act shall have effect in relation to such..... proceedings....'.

5. It is clear that the saving clause was effective to continue theappointment of the Arbitrator made under the repealed Act, and also to keepalive the proceedings before him. But the proposals made by him had to be dealtwith by the Tribunal of Arbitration, which was not continued by the savingclause, aforesaid. The board of Appeal constituted under s. 35 of the Act wascompetent to deal with any decision of the Town Planning Officer, but theArbitrator under the old Act did not ipso facto become, without an expressorder of the Government appointing him, a Town Planning Officer; and anydecision or order by the Arbitrator would not have the effect of an order bythe latter. That lacuna does not appear to have been removed by any subsequentlegislation or order of the Government of Gujarat, under the Act. Some lacunaewere discovered in the working of the Act and the Government of Maharashtracame 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, ithas been provided that 'reference to Town Planning Officer in this Actshall include reference to an Arbitrator whose appointment is continued inforce under sub-section (2)', set out above. No such action was taken bythe Government of Gujarat, nor any validating Act passed by the GujaratLegislature. It is thus manifest that the appeals preferred by the appellantsagainst 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 resultthat the orders purported to have been passed by the Board on those appeals arewithout jurisdiction. We need not go into the further question as to the effectof the orders of the Arbitrator which had been challenged by the appellants asit now appears without effect.

6. In the result, these appeals are allowed. But in view of the fact thatthe appellants themselves were at least partly responsible for making thoseinfructuous appeals, there will be no order as to costs in this Court.

7. Appeals allowed


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